Surya Prakasam And Ors vs The State Of Maharashtra And Anr
2021 Latest Caselaw 1809 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
        CRIMINAL WRIT PETITION (ST.) NO.4298 OF 2020


1.    Surya Prakasam                           ]
2.    Satish Cheeti                            ]
3.    Animesh Roy                              ]
4.    Venkatesh,                               ]
      all having office at Ramky               ]
      Reclamation and Recycling Limited,       ]
      having address 13th Floor, Ramky         ]
      Grandiose, Ramky Towers Complex,         ]
      Gachibowli, Hyderabad - 500 032.         ]    ...               Petitioners

                      Versus

1.    The State of Maharashtra                 ]
      (At the instance of Khandala Police      ]
      Station, Post & Taluka : Khandala,       ]
      District : Satara) In FIR No.31 of       ]
      2020 dated 03/03/2020 under              ]
      Sections 406, 420, 285, 427 r/w          ]
      Section 34 of the IPC.                   ]

2.    Gurukanwarpal Kirpal Singh               ]
      adult, Indian Inahbitant, having hi      ]
      residence address at Bungalow No.3,      ]
      Palace Orchard, Monarchy Undri,          ]
      Hadapsar, Pune - Maharashtra - 411       ]
      028.                                     ]       ...        Respondents



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                                           ...

Dr. Abhinav Chandrachud with Mr. Yashmaan Mishra, Mr. Digajmaan
Mishra, Ms. Shweta Bharti, Ms. Anil Tiwari, Mr. Mangesh Bhende, Ms.
Sunita Vishwakarma and Ms. Shuchi Sejwar i/b Hammurabi and
Solomon for the Petitioners.

Dr. F.R. Shaikh, A.P.P. for Respondent No.1-State.

Ms. Sucheta D. Ghaisas for Respondent No.2.

                                           ...

                              CORAM            : S.S. SHINDE &
                                                 MANISH PITALE, JJ.

RESERVED ON : 11TH JANUARY, 2021.

PRONOUNCED ON : 28TH JANUARY, 2021.

JUDGMENT:- [Per: Manish Pitale, J.]

1. Rule. Rule made returnable forthwith. With the consent of learned counsel appearing for the parties, heard finally.

2. The petitioners before this court are officers of a Hyderabad based company viz. Ramkey Reclamation and Recycling Private Limited, which is engaged in the business of environment management services. They have approached this court seeking quashing of the First Information Report ("FIR") dated 03/03/2020 filed against them at Police Station Khandala, District Satara, for alleged offences punishable under Sections 285, 406, 420 and 427 and Section 34 of the Indian

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Penal Code ("IPC"). The said FIR has been registered pursuant to a complaint lodged by respondent No.2.

3. The said company had floated a tender inviting bids for recycling plastic. Respondent No.2 submitted bid through his company viz. JK Waste Recycling Private Limited in response to the invitation of bids on behalf of the company in which the petitioners are officers. There was a condition in the tender that the bidder would have to successfully carry out trial to recycle plastic waste material sent by the petitioner-company. There were two trials conducted successfully by the company of respondent No.2 of recycling plastic waste material. But, in the third round of such trial, an incident occurred wherein during the course of such trial, gases started getting generated and fearing an untoward incident, the company of respondent No.2 put a halt to the trial in the presence of the officers of the company in which the petitioners are employed.

4. According to respondent No.2, such an incident occurred because of moist and sub-standard plastic waste material deliberately supplied by the company of the petitioners during the third trial. It was claimed that the company of the petitioners wanted to establish a recycling plant in which the company of respondent No.2 specilizes and, by giving an allurement of awarding contract to respondent No.2 for establishing such recycling plant, the company of petitioners got two trials done for free and thereafter they provided sub-standard material during the third trial.

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It is relevant that although the incident took place on 11/10/2019, respondent No.2 actually approached the police on 03/03/2020 with such a complaint against the petitioners, resulting in registration of the FIR on 03/03/2020 for the said offences.

5. The petitioners have approached this court by way of the present writ petition claiming that even if the contents of the complaint submitted by respondent No.2 were to be accepted, ingredients of the alleged offences were not made out. It was claimed that a pure civil and contractual matter was sought to be given the colour of criminal proceedings. While entertaining the present writ petition, this court granted interim order in favour of the petitioners to the effect that the Investigating Officer could proceed with the investigation, however, the charge-sheet would not be filed, without leave of this court.

6. Respondent No.2 entered appearance through his counsel Ms. Sucheta Ghaisas and, respondent No.1-State was represented by learned A.P.P. Dr. F.R. Shaikh. The writ petition was finally heard.

7. Dr. Abhinav Chandrachud, learned counsel appearing for the petitioners submitted that there was obvious delay in registration of the FIR since the alleged incident took place on 11/10/2019, while the complaint leading to registration of FIR was submitted after about five months, on 03/03/2020. Learned counsel invited the attention of this court to an e-mail sent by respondent No.2 after the said incident dated

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11/10/2019, wherein it was categorically stated that despite the specific problems encountered during the third trial, the company of respondent No.2 would support the company of the petitioners for another trial, further requesting that the material sent for trial must be dry and free from PVC and rubber. On the basis of the said communication, it was emphasized that there was no grievance raised at all, by respondent No.2 at the relevant time and the submission of the complaint before the police after about five months, was clearly an afterthought. It was further submitted that the dispute between the parties, if at all, was of a civil and contractual nature, which could not be given the colour of criminal liability.

8. Learned counsel for the petitioners further submitted that even if the contents of the complaint and FIR were to be taken into consideration, the ingredients of offences under Sections 285, 406 and 420 of the IPC were not made out. Attention of this court was invited to the said provisions and it was stated that even prima facie, no case existed against the petitioners for criminal liability and, therefore, the present petition deserved to be allowed. Reliance was placed on various judgments of the Hon'ble Supreme Court, reference to which shall be made while considering the contentions of the rival parties.

9. On the other hand, Ms. Ghaisas, learned counsel appearing for respondent No.2 submitted that the petitioners had deliberately allured the company of respondent No.2 into undertaking the aforesaid trials. It

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was submitted that two trials were got done free of cost by the company of the petitioners under the pretext of awarding contract for establishing of recycling plant. It was submitted that sub-standard plastic waste material was deliberately supplied by the petitioners to respondent No.2 with an intention of causing damage to the plant and that therefore, the said offences were clearly made out.

10. Learned counsel appearing for respondent No.2 submitted that all the ingredients of the aforesaid offences were found in the manner in which the incident had taken place. It was further submitted that mere delay in approaching the police authorities could not be a ground, at this stage, to seek quashing of the FIR. It was further submitted that the antecedents of the petitioners are significant in such a case where they seek quashing of the FIR and attention of this court was invited to certain legal proceedings instituted against the company of the petitioners to indicate that they did not deserve any indulgence from this court. Reference was made to certain judgments in support of the said contentions, which shall be dealt with hereinbelow.

11. Dr. F.R. Shaikh, learned A.P.P. appeared on behalf of respondent No.1-State.

12. Learned counsel appearing for the petitioners as well as respondent No.2 filed written submissions in support of their respective contentions.

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13. In the light of the contentions raised on behalf of the rival parties, it needs to be examined whether the material on record indicates that ingredients of the offfences alleged against the petitioners are even, prima facie, made out. This is because, according to learned counsel appearing for the petitioners, the complaint leading to the registration of FIR does not, in any manner, indicate that the petitioners could be even prima facie, said to have committed offences under the provisions stated above. Before embarking upon the exercise of testing whether the ingredients of offences are made out, it would be appropriate to refer to the categories identified in the landmark judgment of the Hon'ble Supreme Court in the case of State of Haryana v. Bhajan Lal1, which was followed in number of subsequent judgments, wherein power to quash FIR could be exercised. The relevant portion of the said judgment reads as follows:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1 1992 Supp (1) SCC 335

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1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima- facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the

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concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

14. A perusal of the above-quoted portion of the judgment of the Hon'ble Supreme Court would show that the contentions raised on behalf of the petitioners would fall in categories (1), (2) and (3). In the present case, it is claimed by respondent No.2 that the petitioners committed offences of criminal breach of trust, cheating and indulging in negligent conduct with respect to fire or combustible matter. Therefore, it becomes necessary to examine as to what are the essential ingredients of the said offences.

15. Criminal breach of trust is defined in Section 405 of the IPC and, punishment for the same is specified in Section 406 thereof. Section 405 of the IPC reads as follows:

"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 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,

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which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"

16. In order to attract the said provision, it would be necessary in the first place that the accused person is entrusted with a property and such property is then dishonestly misappropriated or converted to his own use by such an accused person. The said provision is also attracted if the accused person dishonestly uses or disposes of such property in violation of any direction of law. Thus, the sine qua non for attracting the said provision is the entrustment of the property to the accused person. In the present case, according to respondent No.2, it was the petitioners (accused persons), who had handed over waste plastic material for recycling to the plant of respondent No.2. Therefore, even going by the contents of the complaint leading to the registration of FIR, there cannot be said to be entrustment of property by respondent No.2 to the petitioners herein which, in turn, was dishonestly misappropriated or converted to their own use by the petitioners and, it can also not be said that the petitioners dishonestly used or disposed of that property in violation of any direction of law. As a consequence, when the fundamental basis for applying the said provision cannot be made out even prima facie on the basis of material on record, it becomes clear that the claim of respondent No.2 that cognizable offence under Section 406 of the IPC is made out, cannot be accepted.

17. In this regard, learned counsel appearing for the petitioners is

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justified in relying upon the judgments of the Hon'ble Supreme Court delivered in the case of Jaswantrai Manilal Akaney v. State of Bombay 2 and State of Gujarat v. Jaswantlal Nathalal3.

18. On the other hand, learned counsel appearing for respondent No.2 could not explain before this court as to how it could be said that the basic requirement of entrustment of the property to the petitioners was made out, on the basis of the complaint submitted by the said respondent. A feeble attempt was made by learned counsel appearing for respondent No.2 to contend that this court should interpret the facts relied upon by respondent No.2 to the effect that the entrustment of the recycling plant of respondent No.2 had been made in favour of the petitioners. But, the said contention is devoid of any merit and, we are of the opinion that the basic requirement for applying Sections 405 and 406 of the IPC, is not satisfied in the present case.

19. As regards offence of cheating, Sections 415 and 420 of the IPC are relevant. The said provisions read as follows:

"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 2 AIR 1956 SC 575 3 AIR 1968 SC 700

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or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

20. The operative words and the essential ingredients of the offence of cheating are deception on the part of the accused or dishonest inducement by them resulting in any person delivering any property to such accused or alteration or destruction of whole or any part of a valuable security. The emphasis under the said provisions concerning the offence of cheating is on the victim delivering any property to the accused on the basis of a dishonest inducement or deception practiced by the accused persons. The said ingredients have been elaborated by the Hon'ble Supreme Court in the case of Dalip Kaur & Ors. v. Jagnar Singh & Ors.4.

21. Applying the said requirements constituting the offence of cheating to the uncontroverted allegations made by respondent No.2 in the present case, it becomes evident that even, prima facie, the said requirements are not present. The manner in which respondent No.2

4 (2009) 14 SCC 696

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had described the sequence of events does not show any delivery of property or alteration or destruction of valuable security due to dishonest inducement or deception practiced by the petitioners herein. Therefore, learned counsel for the petitioners is justified in claiming that offence of cheating cannot be said to be made out, even if the allegations levelled by respondent No.2 are to be accepted.

22. Section 285 of the IPC pertains to negligent conduct with respect to fire or combustible matter. The said provision reads as follows:

"285. Negligent conduct with respect to fire or combustible matter.--Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

23. The essential requirement of the said provision is that the accused must have done something with fire or any combustible matter in a rash and negligent manner to endanger human life. In the first place, the material on record, including the FIR in the present case, does not show anything done by the petitioners with fire or any combustible matter. The act on their part of supplying plastic waste material for recycling to

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respondent No.2 in itself cannot be said to be an act done with fire or any combustible matter. Their act of supplying such material for testing in the recycling plant of respondent No.2 cannot be said to be a negligent or rash act done to endanger human life. Thus, the essential ingredients of the said offence cannot be said to be prevalent in the present case, even if the claims of respondent No.2 were to be accepted.

24. In this regard, learned counsel appearing for the petitioners has placed reliance on the judgment of the Madras High Court in A. Santhos Yadav v. Bar Council of Tamil Nadu5, wherein the act of burning of an effigy was not found to be attracting the aforesaid offence under Section 285 of the IPC. In the said case, the accused had actually done something with fire or combustible matter and, yet, it was found that the ingredients of the offence were not made out. In the present case, as noted above, there is not even an allegation against the petitioners that they had done anything with fire or combustible matter, in order to endanger human life. Therefore, the ingredients of the said offence cannot be said to be made out in the present case.

25. Learned counsel appearing for respondent No.2 sought to rely upon various judgments of the Hon'ble Supreme Court including judgments in the case of Bhajan Lal (supra), Ramesh Kumari v. State (NCT of Delhi)6, Prakash Singh Badal v. State of Punjab 7 and Lalita

5 (2015) SCC Online Mad. 3362 6 (2006) 2 SCC 677 7 (2007) 1 SCC 1

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Kumari v. Government of Uttar Pradesh 8. But, the said judgments cannot assist respondent No.2 in the present case, for the reason that the basic ingredients of the aforesaid offences do not appear to be present, even prima facie, on the basis of uncontroverted claims made by respondent No.2.

26. In this backdrop, delay in filing of the FIR also assumes significance. It is an admitted position on facts that while the alleged incident took place on 11/10/2019, the FIR was eventually lodged on 03/03/2020 i.e. about 5 months after the date of incident. On the very next day of the incident, respondent No.2 himself had sent an e-mail to the petitioners referring to the incident and, despite referring to the same, it was stated that he and his company would support the petitioners for another trial for recycling the plastic waste material. There was no grievance made at all, in the said communication. Although, delay in approaching the police, in itself, may not be a reason to quash the FIR, in the facts of the present case, and in the light of the said e-mail sent on the next day of the incident, the said aspect becomes significant.

27. In view of the admitted facts of the present case, the judgment of the Hon'ble Supreme Court relied upon by learned counsel for respondent No.2 in the case of Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh & Ors. 9, cannot assist the 8 (2012) 4 SCC 1 9 Decided on 26/11/2020 in SLP (Cri.) No.4931 of 2020

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contentions raised on behalf of respondent No.2, on the said aspect.

28. In the written submissions, a contention was sought to be raised on behalf of respondent No.2 that while considering the question of quashing of FIR, antecedents of the accused were required to be examined. In this context, it was claimed that the petitioners were facing litigation in the form of public interest litigation regarding failure of the company of the petitioners in the context of a contract of collection of garbage in a city in Telangana for generation of electricity. We are of the opinion that merely because a public interest litigation of the said nature was pending in the context of the company of the petitioners, it cannot be said that they have any criminal antecedents, due to which, this court would hesitate in exercising power for quashing the said FIR, even when ingredients of the offences alleged against them were not made out.

29. It is also an admitted position that offence under Section 427 of the IPC is not a cognizable offence.

30. In view of the above, we are of the opinion that the case of the petitioners is covered under the first four categories specified in the above-quoted portion of the judgment of the Hon'ble Supreme Court in the case of Bhajan Lal (supra). As the uncontroverted allegations made by respondent No.2 against the petitioners do not disclose a cognizable offence, the said FIR registered against them cannot be permitted to be proceeded with. Therefore, we find that the present case deserves

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exercise of extra-ordinary writ jurisdiction and inherent powers under Section 482 of the Cr.P.C. to grant the prayer of the petitioners. Accordingly, the writ petition is allowed in terms of prayer clause (a), which reads as follows:

a) an appropriate order or direction with regard to quashing the F.I.R. No.31 of 2020, dated 03.03.2020 u./ss. - 406, 420, 285, 427 r. w. 34 of I.P.C. at the Police Station Khandala, Distt.-Satara (MH) against the Petitioners."

31. We make it clear that the present order will not come in the way of respondent No.2 in instituting any civil proceedings against the petitioners in respect of any grievance, if permissible in law, which shall be considered and decided in accordance with law.

32. Rule made absolute in the above terms.

33. Writ petition is disposed of accordingly.

(MANISH PITALE, J.)                                         (S. S. SHINDE, J.)




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