Sunil S/O Ramu Jangle vs The State Of Maharashtra And Anr
2017 Latest Caselaw 2963 Bom

                                                              Cri.Appln.1234/2017
                                     1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                    CRIMINAL APPLICATION NO.1234 OF 2017

Sunil s/o Ramu Jangle,
Age 47 years, Occu. Service,
R/o Plot No.18, Mohan Nagar,
Mahabal Colony, Jalgaon
Taluka and District Jalgaon                           .. Applicant
                                                   (Orig. accused No.3)

        Versus

1.      The State of Maharashtra,

2.      Rajesh s/o Hemraj Saraf,
        Age 42 years, occu. Business,
        (Gas Agency), R/o Bhadli,
        Taluka and District Jalgaon                   .. Respondents
                                                (No.2 - orig. complainant)


Mr V.J. Dixt, Senior Counsel i/b Mr R.B. Ade, Advocate for applicant
Mr K.S. Patil, A.P.P. for respondent no.1
Mrs S.A. Dhumal-Tambat, Advocate for respondent no.2


                                         CORAM : R.M. BORDE AND
                                                 A.M. DHAVALE, JJ.

                                         DATE     : 8th June 2017

ORAL JUDGMENT


        Heard.

2.      Rule.      Learned Addl. Public Prosecutor and learned Counsel

waive service of notice for respective respondents. With the consent

of the parties, application is taken up for final disposal at admission

stage.

3. The applicant is praying for quashment of the criminal

proceedings initiated against him in the shape of Regular Criminal

Case No.85/2017 in pursuance to the first information report No.186

Cri.Appln.1234/2017

of 2016 lodged by respondent No.2 at Jilha Peth Police Station, Jalgaon

on 23rd December 2016. The respondent No.2 alleges in the complaint

that he wanted to convert demonetised currency notes worth Rs.30

lakhs into the valid currency notes, which is legal tender in

accordance with the policy prescribed by the Reserve Bank of India.

The informant approached one Chandrashekhar Krishna Chaudhary

and his wife Chandralekha. The informant also approached his

maternal father-in-law by name Sunil Ramu Jangle, applicant herein

who assured to help the informant in exchange of notes.

4. The applicant is serving in Janata Co-operative Bank at Jalgaon.

Informant handed over the demonetised notes worth Rs.30 lakhs on

28th November 2016 to Chandrashekhar Chaudhari and his maternal

uncle's niece Chandralekha who had extended assurance to him to

help in exchange of notes. It was also decided between the parties

that informant would be paid Rs.26 lakhs in lieu of tender of notes

worth Rs.30 lakhs. The informant stated that the accused failed to

deliver the valid currency notes as assured and have thus committed

offences punishable under Sections 420 and 406 of the Indian Penal

Code. The question that falls for consideration in the matter is

whether the allegations levelled against the applicant herein

constitute offences punishable under Sections 406 and 420 of the

Indian Penal Code. It is not a matter of dispute that the Reserve Bank

of India declared the policy of demonetisation of currency notes of

Rs.500 and Rs.1,000 on 8th November 2016. It is declared in the

gazetted notification dated 8th November 2016 bearing No.RB/2016-

17/12 DCM (Pig) No.1226/10.27.00/2016-17 that the Bank notes of the

Cri.Appln.1234/2017

existing series issued by Reserve Bank of India shall cease to be a

legal tender w.e.f. 9th November 2016 to the extent specified in the

Notification. The Notification prescribed the modalities for exchange

of the old notes. The policy provides for the mechanism of the

exchange of the old notes. The bearer of the notes is expected under

the policy to exchange the notes only at the Reserve Bank of India

and other prescribed Banks and other instrumentalities as specified in

the Notification. It cannot be disputed that under the policy declared

by the Reserve Bank of India on 8 th November 2016, the existing

currency notes of Rs.500/- and Rs.1,000/- from 9 th November 2016

cannot be considered as legal tender. Admittedly, the applicant

herein or any of the persons cannot be said to be the individuals

authorised to receive demonetised Bank notes and exchange the

same with the valid currency. Firstly, it was not permissible for the

applicant himself to maintain the stock of demonetised currency

without proper disclosure or to make any attempt to exchange the

same or to transact the same as a legal tender with any private

individual. It was also not permissible for the accused to extend any

assurance in respect of exchange of demonetised notes, since he is

not the authority prescribed under the policy declared by the Reserve

Bank of India on 8th November 2016.

5. The question is as to whether ingredients of Section 420 and

406 of the Indian Penal Code are satisfied so far as the allegations

levelled against the applicant concerned. The definition of cheating is

prescribed under Section 415 of the Indian Penal Code, which reads

thus :

Cri.Appln.1234/2017

415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

In the instant matter, demonetised currency that has been as

allegedly delivered to the accused are Bank notes and the alleged

transaction which constitutes the offence, according to informant has

taken place after 9th November 2016. The demonetised Bank notes

are capable of being converted into valuable security only by adopting

the norms, as prescribed in the Notification issued by the Reserve

Bank of India on 8th November 2016. The demonetised Bank notes

with the informant or which were delivered to the accused after 8 th

November 2016 can be construed as capable of being converted into

valuable security only at the Bank or establishment specified in the

Notification issued by Reserve Bank of India on 8th November 2016.

6. It is the contention of the informant that the demonetised Bank

notes were handed over to the private individuals who assured him to

deliver the valid currency. The agreement between the informant and

the other private individuals named in the first information report

itself is against the policy laid down by the Reserve Bank of India on

8th November 2016. Any private individual, in fact, is not authorised

to exchange the demonetised notes with the valid currency notes and

Cri.Appln.1234/2017

it is only the specified establishments and Banks can transact in

relation to the demonetised Bank notes and that too in accordance

with the policy prescribed by the Reserve Bank of India. The

ingredients of Section 415 of the Indian Penal Code thus cannot be

said to be attracted in the instant matter nor it can be said that the

accused have dishonestly induced delivery of the property. The

demonetised Bank notes with the informant or with the other

individuals named in the first information report cannot be said to be

'property' unless it is converted into valuable security by adopting the

norms prescribed in the Notification and in the instant matter, it is not

the case of the informant that either the accused assured him to

observe the modalities prescribed by the Reserve Bank of India or that

it was an expectation of the informant to exchange the notes by

observing such modalities. In fact, on perusal of the first information

report, it is clear that the first informant wanted to exchange the

demonetised notes in contravention of the policy laid down by

Reserve Bank of India. The action of the informant, which amounts to

contravention of the policy prescribed by the Reserve Bank of India

under the Notification dated 8th November 2016 itself is the matter

requiring investigation. The allegations levelled against the applicant

in respect of criminal breach of trust also do not appear to be correct

and do not satisfy ingredients of offence. Section 405 of the Indian

Penal Code defines criminal breach of trust as :

405. 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

Cri.Appln.1234/2017

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 willfully suffers any other person so to do, commits "criminal breach of trust".

7. In the instant matter, the applicant is not the person to whom

the property was entrusted. The demonetised Bank notes handed over

by the informant to the other accused named in the first information

report can be construed to be capable of being converted to valuable

security which can be done only by adoption of procedure prescribed

by Reserve Bank of India in its Circular. In this view of the matter, it

cannot be said that ingredients of Section 405 of the Indian Penal

Code are attracted so far as the acts allegedly attributed to the

applicant is concerned and as such, he is not liable to be punished

under Section 406 of the Indian Penal Code.

8. For the reasons recorded above, the criminal proceedings

initiated against the applicant are not sustainable in law. Criminal

Application deserves to be allowed and is accordingly allowed. The

criminal proceedings initiated against the applicant bearing Regular

Criminal Case No.85/2017 in pursuance to the registration of

C.R.No.186/2016, registered at Zilla Peth Police Station, Jalgaon,

before the Judicial Magistrate, First Class, Jalgaon stand quashed.

9. Rule is accordingly made absolute.

         ( A.M. DHAVALE, J.)                 ( R.M. BORDE, J.)
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