Vijay Bharadwaj And Others vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 140 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- APPLICATION U/S 482 No. - 2430 of 2021
 

 
Applicant :- Vijay Bharadwaj And Others
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home. Lko And Another
 
Counsel for Applicant :- Jai Priya Swapnil,Purnendu Chakravarty,Vikash Bhatnagar
 
Counsel for Opposite Party :- G.A.,Amandeep Singh,Puneet Saxena
 

 
Hon'ble Suresh Kumar Gupta,J. 

On 3.8.2021, this Court has passed the following order:-

"Heard Sri Purnendu Chakravarty, learned counsel for applicants, Sri Vipul Gupta, learned Additional Government Advocate for State and perused the record.

The applicants have filed this petition praying to quash the cognizance order dated 4.3.2020 and the summoning order dated 8.3.2021 as well as the entire proceedings of the case pending before the Additional Chief Judicial Magistrate 1st, Faizabad in Complaint Case No.3056 of 2019, under Section 406 I.P.C., P.S.Kotwali Nagar, District Ayodhya Faizabad, Pankaj Bisaria v. Vijay Bharadwaj and others.

Sri Purnendu Chakravarty while referring to the summoning order dated 4.3.2020, passed by the courts below submits that the summoning order has been passed in utter disregard to the settled law pertaining to the summoning of accused persons to face trial as there was neither any material nor any evidence available before the trial court which may be termed as sufficient ground for initiation of proceedings against the opposite parties.

It is further submitted that admittedly the applicants are the employees of a company, namely, Avantor Performance Materials India Limited and neither in the complaint nor in the statement of the complainant recorded under Section 200 Cr.P.C. and his witnesses Jitendra Kumar and Mohd. Abrar recorded under Section 202 Cr.P.C., it has been stated that any Post dated cheque was entrusted to the applicants while contrary to this, the averments are to the tune that the post dated cheques were given to the company and, the same could never be deemed to have been entrusted to the applicants and, therefore, in absence of any allegation with regard to the entrustment of cheques, the applicants could not have been summoned to face trial under Section 406 I.P.C.

It is further submitted that under Section 139 of the Negotiable Instruments Act, there is presumption that when a cheque has been issued, the same has been issued for a legally enforceable debt or liability and the instant complaint is nothing but has been instituted for the purpose of carving out a defence in the complaint which has been filed by the company of the applicants against the applicants for dishonour of some cheques issued.

While referring to several case laws with regard to the amendment incorporated under Section 202(1) Cr.P.C., it is vehemently submitted that the trial court has failed to follow the procedure provided in that section and, therefore, the whole proceedings including the summoning order has been vitiated. It is also submitted that on the same sets of facts the company of the complainant, namely U.S.Enterprises has filed a civil suit before the Civil Judge (Senior Division), Faizabad and has claimed a relief that the defendant/company, namely, Avantor Performance Materials India Limited, be directed to return the post dated cheques mentioned in the complaint to the plaintiff - firm and due to the own admission of the complainant, the whole dispute between the two companies is of civil nature and, therefore, initiation of criminal proceedings is abuse of the process of law.

It is also submitted that no reason has been assigned by the Magistrate for summoning the applicants and since summoning in a criminal trial is a serious matter and some of the applicants, who are the residents of Delhi, Prayagraj and Tamilnadu, would be under extreme difficulty on the ground that they have been summoned to face trial without sufficient material available against them.

Learned Additional Government Advocate on the other hand submits that since the post dated cheques have not been returned by the company, wherein the applicants are working, they are also liable and no illegality or irregularity has been committed by the court below in summoning the applicants to face trial.

Perusal of the record as well as the order dated 4.3.2020, passed by the trial court would reveal that the complaint case was filed by the complainant Panjaj Bisaria, who is proprietor of U.S.Enterprises, situated at Deokali, P.S.Kotwali Nagar, Ayodhya-Faizabad with the allegations that his firm was engaged in purchasing some medical instruments, chemicals from the opposite parties and was supplying the same to his customers i.e. doctors, diagnostic centres, hospitals, nursing homes and other pathology labs etc. Complainant used to provide/issue post dated cheques to the opposite parties and in pursuance of demand letter of the complainant, some medical equipments of the value of Rs. 10,50,000/- were provided to the complainant by the company of the opposite parties and it was agreed that the payment would be made after full satisfaction of the complainant but the opposite parties did not install the equipments and the customers of the complainant did not pay the price to him on which he informed the opposite parties to take back their equipments. On 13.09.2019 a settlement was held between the parties that they will take back defective equipments and will supply new equipments and will also return the post dated cheques to the complainant, however neither machines were replaced nor cheques were returned and he was compelled to stop the payment of these cheques which were ultimately dishonoured and on 5.10.2019, opposite parties/accused persons also alleged to have come to the establishment of the complainant and threatened him. It is also stated that the complainant has been defrauded of lacs of rupees.

The applicants are stated to be only the employees of the company while the cheques are stated to be entrusted to the company for which applicants are working. There cannot be any doubt in the proposition that entrustment of the property is one of the main ingredient for invoking Section 405 of the I.P.C., which is punishable under Section 406 I.P.C.

It has been vehemently submitted by learned counsel for the applicants that even if the case of the complainant is taken on its face, no such entrustment has been pleaded either in the complaint or has been stated by the complainant in his statement recorded under Section 200 Cr.P.C. and also that the matter is purely of civil nature.

Having heard learned counsel for parties and having given considered thought to the facts and circumstances of the case, in the considered opinion of this Court the matter requires consideration.

Issue notice to opposite party no.2 returnable within three weeks from today.

Steps in this regard may be taken within four working days through ordinary as well as through registered A.D. post.

List this case on 8.9.2021 along with service report before the appropriate Bench.

The opposite parties may file counter affidavit in the meantime.

Till the next date of listing, further proceedings of Complaint Case No.3056 of 2019, under Section 406 I.P.C., P.S.Kotwali Nagar, District Ayodhya Faizabad, Pankaj Bisaria v. Vijay Bharadwaj and others, shall remain stayed."

Heard Sri Purnendu Chakravarty, learned counsel for the applicant, Sri Puneet Saxena, learned counsel for the opposite party no. 2 and learned A.G.A. as well as perused the record.

This application under Section 482 Cr.P.C. has been filed to quash cognizance order dated 4.3.2020 and the summoning order dated 8.3.2021 as well as the entire proceedings of the case pending before the Additional Chief Judicial Magistrate 1st, Faizabad in Complaint Case No.3056 of 2019, under Section 406 I.P.C., P.S.Kotwali Nagar, District Ayodhya Faizabad, (Pankaj Bisaria v. Vijay Bharadwaj and others).

Learned counsel for applicants has submitted that the applicants have been falsely implicated in this case and they has not committed any offence as alleged by the prosecution. To give the colour of criminality to the dispute between the parties present complaint has been lodged against the applicant. General allegation has been levelled against the applicant. No specific role has been assigned to the applicant and thus no disclosed offence is made out against the applicant under Section 406 I.P.C.. Therefore, the aforesaid proceedings against the applicants is liable to be quashed. In support of his submission learned counsel for the applicant place reliance upon a judgment of Hon'ble Supreme Court passed in Criminal Appeal No. 1225 of 2016 arising out of SLP (Criminal) No. 9318 of 2012 (Abhijit Pawar Vs. Hemant Madhukar Nimbalkar & Another) in which it has been held that :-

"Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22 nd June, 2006 by adding the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment. The essence and purpose of this amendment has been captured by this Court in Vijay Dhanuka Vs. Najima Mamtaj in the following words:

"11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.

12. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:

"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.

" The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we (2014) 14 SCC 638 find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate."

On the contrary, Sri Puneet Saxena, learned counsel for the opposite party no. 2 submitted that after making the wrong documents, the applicants has provided defected medical equipment, which is a serious offence. Thus, prima facie offence under Section 406 I.P.C. is made out against the applicants. Consequently, the trial court has passed the impugned order after perusing the relevant documents and evidence on record and thus, the impugned order is in accordance with law and there is no illegality or perversity in the order passed by the trial court.In support of his submission, learned counsel for the opposite party no. 2 placed reliance upon a judgment of Hon'ble Supreme Court passed in National Bank of Oman Vs. Barakara Abdul Aziz and Another (2013)SCC 488.

Now the question arises whether the offence under Section 406 I.P.C. is made out against the applicants or not. It is an admitted fact that the applicants are employee of the company, namely, Avantor Performance Materials India Limited. It is also submitted that company has not been made party.

The provisions of Section 405 I.P.C. is read as under:-

Criminal breach of trust- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ?criminal breach of trust?.

The essential things to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intention or not. The failure to account for the amount proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstances against the accused.

For an offence of criminal breach of trust besides showing that the property was entrusted to the accused it is further necessary to show that he had dishonestly misappropriated or converted it to his own use.

Now, the question arises what is the property is entrusted to the applicant is silent. In his complaint, the complainant has made general allegations against the applicants that the applicants being employee of the company supplied the sub-standard equipment to the complainant. Thus, the essential ingredients of criminal breach of trust is lacking. The factum of this case is that the dispute is relating to the supply of medical equipment. Therefore, it is crystal clear that there is breach of agreement between the company and the complainant, which is purely a civil dispute and only to give the colour of criminality, the present case has been lodged against the applicants. Thus, no offence under Section 406 I.P.C. is made out against the applicants.

Considering the submission advanced by the learned counsel for the applicants and learned counsel for the opposite party no. 2 and facts and circumstances of the present and case law, I am of the view that criminal proceedings against the applicants is nothing but an abuse of the process of the Court. Accordingly, the cognizance order dated 4.3.2020, the summoning order dated 8.3.2021 as well as the entire proceedings of the Complaint Case No.3056 of 2019 is quashed.

The application under Section 482 Cr.P.C. is, accordingly, allowed.

Order Date :- 3.1.2023

Anuj Singh