The Himachal Pradesh High Court allowed a petition, filed for seeking pre-arrest bail. The Court observed that the offences punishable under Sections 406 and 420 of the IPC cannot be tried together, as both these offences require different mens rea.
Brief Facts:
The informant-Brijesh Kharbanda made a complaint to the police asserting that a firm was established in the name and style of MM Square by the petitioner-Mukesh Sharma and the informant-Brijesh Kharbanda on 03.12.2019. The informant suspected that the payments were being made to un-named building material suppliers, contractors, and laborers. He noticed that a large amount of cash was being withdrawn by Mukesh Sharma from the account of the firm. He visited the project site and found that minimum work was carried out by the petitioner. He could not find account books and other relevant documents. The informant found that Mukesh Sharma had prepared false bill books. These acts constituted fraud, misrepresentation, and forgery. The police registered FIR for the commission of offences punishable under Sections 403, 405, 406, 420, 467, 468, and 471 read with Section 120B of IPC
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the dispute between the parties is purely civil. The informant and the petitioner entered into an agreement. The petitioner is carrying out the construction as per the agreement. The informant wants to pressurize the petitioner to give up his share. The notice for the appointment of the Arbitrator has also been issued by the informant. The criminal proceedings have been initiated for ulterior purposes.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the petitioner has misappropriated a huge amount, which is to be recovered by the police. The custodial interrogation is necessary for the recovery of the amount; therefore, he prayed that the present petition be dismissed.
Observations of the Court:
The Court noted that the power of pre-arrest is extraordinary and should be exercised sparingly. It is an admitted case of the parties that the informant and the petitioner entered into a partnership agreement and the petitioner was entrusted with the construction work. It was submitted that the petitioner had misappropriated the money of the firm, hence, he is liable for criminal breach of trust.
The Court observed that a partner of the firm cannot be charged with the criminal breach of trust of the property of the firm. The Court said that the offences punishable under Sections 406 and 420 of the IPC cannot be tried together, as both these offences require different mens rea.
The decision of the Court:
The Himachal Pradesh High Court, allowing the petition, held that it is doubtful that the petitioner has committed the offences alleged against him
Case Title: Mukesh Sharma v State of H.P.
Coram: Hon’ble Justice Rakesh Kainthala
Case no.: Cr. MPM No. 2296 of 2023
Advocate for the Petitioner: Mr. Ajay Kochhar
Advocate for the Respondents: Mr. Prashant Sen
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