Calcutta High Court (Appellete Side)

Mrs. Anjali Singh (Rai) vs State Of West Bengal on 15 September, 2022

                   IN THE HIGH COURT AT CALCUTTA

                   CRIMINAL APPELLATE JURISDICTION

                                 APPELLATE SIDE

Present: The Hon'ble JUSTICE BIVAS PATTANAYAK

                          C.R.R. 668 of 2013

                             Mrs. Anjali Singh (Rai)

                                       versus

                              State of West Bengal


For the Petitioner:      Mr.Prabir Kumar Mitra, Adv.

                          Mr. Pinak Kumar Mitra, Adv.

                          Ms.Ariba Shahab, Adv.

For the State:            Mr.Arijit Ganguly, Adv.

                          Mr. Sandip Chakraborty, Adv.

                          Mr. Sanjib Kumar Dan, Adv.

Heard on: 16.08.2022

Judgment on: 15.09.2022

BIVAS PATTANAYAK, J. : -

1.

The present revisional application has been filed by the petitioner under

Section 482 of the Code of Criminal Procedure for quashing of the proceeding

in connection with GR Case no. 943 of 2009 (arising out of Chinsurah Police

Station Case no. 205 of 2009 dated 27.08.2009) under Sections 406/420 of

the Indian Penal Code pending before the learned Chief Judicial Magistrate,

Chinsurah, Hooghly.

2.The brief fact of the case is as follows:-

(i)An open tender was floated by the Hooghly Mohsin College for the

Retro-Conversion of Bibliographic records of its library and the

petitioner was one of the bidders of the said tender.

(ii) The petitioner's enterprise namely M/s AB Enterprise was selected by

the college authority to perform the job which was intimated to the

petitioner vide letter dated 31.01.2009.

(iii) The petitioner's enterprise namely M/s AB Enterprise deposited a pay

orderbeing no. 008362 dated 26.09.2009 amounting to Rs. 2 lakhs

issued by United Bank of India, BRBB Road Branch, Kolkata-700001 in

favour of Principal Hooghly Mohsin College, Chinsurah, as a security

deposit in connection with library digitisation work.

(iv)As the petitioner failed to complete the work despite several

telephonic and written reminders the aforesaid pay order was presented

for clearing in the Chinsurah Treasury on 14.08.2009. However, the

instrument was returned on 18.08.2009 with the noting that the

instrument 'already has been cancelled'.

(v) The college authority had no information of such cancellation and the same original instrument was still in the possession of the payee. Moreover, the pay order no. 008362 dated 26.06.2009 was credited unethically and fraudulently by the petitioner's enterprise in its own account being CC Account no. 17725.

(vi) On such basis the FIR came to be registered against the petitioner.

(vii) Upon completion of investigation, the Investigating Agency submitted charge sheet against the petitioner under Sections 406/420 of the Indian Penal Code.

3. Being aggrieved by and dissatisfied with the aforesaid proceeding the

petitioner has preferred the present revisional application.

4. Mr. Prabir Kumar Mitra, learned advocate appearing on behalf of the

petitioner submitted that the petitioner's enterprise was selected in the bid

and upon completion of the work assigned to the enterprise a cheque

amounting to Rs.5,97,600/- dated 30.03.2009 drawn on State Bank of India,

Hooghly Branch was issued in favour of the petitioner's enterprise, meaning

thereby that the work that was assigned to the enterprise was accordingly

completed. Thus, the allegation that the work was incomplete does not stand

to reason.

He further submitted that though there are allegations in the FIR that the petitioner failed to deposit the security amount but as per the notice of tender there was no such clause for depositing aforesaid amount of Rs. 2 lakhs to the authorities. He further drew the attention of the court that soon after lodgement of the case on 27.08.2009 the petitioner deposited another pay order being no.008593 dated 28.08.2009 which has been duly accepted by the college authorities observing that the previous pay order was cancelled erroneously by the bank. Moreover, the dispute, if any, by and between the

parties relates to deposit of pay order in connection with assigned work of digitization and as such the ingredients of Sections 406/420 of the Indian Penal Code is not attracted in the facts and circumstances of the case.

He further submitted that in order to attract Section 420 and Section 406 of

the Indian Penal Code there has to be an iota of materials showing the

intention of the party from the very beginning to deceive the complainant and

entrustment of any property by the complainant and its misappropriation by

the accused. However, such aspects are totally missing in the averments made

in the FIR. In support of his contention he relied on the decision of S.W

Palanitkar versus State of Bihar1; Hridaya Ranjan Prasad Verma and

Others versus State of Bihar and Another.2 ;International Advanced

Research Centre for Powder Metallurgy and New Materials and Others

versus Nimra Cerglass Technics Private limited and another 3; Uma

Shankar Gopalika versus State of Bihar and another.4.

In view of his above submission he prayed for quashing of the above proceeding.

5. Mr.Arijit Ganguly, learned advocate appearing on behalf of the State in reply to the contention raised on behalf of the petitioner submitted thatthe petitioner at first deposited a pay order in favour of the Principal, Hooghly

12002 SCC (Cri) 129

22000 SCC (Cri) 786

32016(1) SCC (Cri) 269

42006(2) SCC (Cri) 49

Mohsin College, Chinsurah as a security deposit and without informing the college authority the petitioner cancelled the pay order and credited the said amount in its account for which the FIR was registered at instance of the college authority. The statement of the bank employees precisely reveals that the petitioner in utter violation of the Banking Regulations cancelled the pay order and credited the amount in its own account. Furthermore upon completion of investigation and on the basis of the prima facie materials collected during the course of investigation, the Investigating Agency has submitted charge sheet against the petitioner under Sections 406/420 of the Indian Penal Code. In light of his aforesaid submission he prayed for dismissal of the revisional application.

6.Having heard the learned advocates of both the sides and before examining

respective contentions on therelative merits it is apposite to notice the legal

position.Every breach of trust may not result in a penal offence of criminal

breach of trust unless there is evidence of a mental act of fraudulent

misappropriation. An act of breach of trust involves a civil wrong in respect of

which the person wronged may seek his redress for damages in the civil court

but a breach of trust with mens rea gives rise to a criminal prosecution as

well.The ingredients in order to constitute a criminal breach of trust are: (1)

entrusting a person with property or with any dominion over property; (2) that

person entrusted (a) dishonestly misappropriating or converting that property

to his own use; or (b) dishonestly using or disposing of that property or wilfully

suffering any other person so to do in violation (i) of any direction of law

prescribing the mode in which such trust is to be discharged; (ii) of any legal

contract made, touching the discharge of such trust. Further the ingredients

to constitute offence of cheating are : (i) there should be fraudulent or

dishonest inducement of a person by deceiving him; (ii) the person so deceived

should be induced to deliver any property to any person , or to consent that

any person shall retain any property or the person so deceived should be

intentionally induced to do or omit to do anything which he would not do or

omit if he were not so deceived; and (iii) the act of omission should be one

which causes or is likely to cause damage or harm to the person induced in

body, mind, reputation and property. In determining the question it has to be

kept in mind that the distinction between mere breach of contract and the

offence of cheating is a fine one. It depends upon the intention of the accused

at the time of inducement or which may be judged by its subsequent conduct

but that is not the sole test. Mere breach of contract cannot give rise to

criminal prosecution for cheating unless fraudulent or dishonest intention is

shown right at the beginning of the transaction i.e the time when the offence is

said to have been committed. Therefore it is the intention which is the gist of

the offence. To hold a person guilty of cheating it is necessary to show that he

had fraudulent or dishonest intention at the time of making the promise. From

his mere failure to keep up promise subsequently such a culpable intention

right at the beginning i.e when he made the promise cannot be presumed.[See

Hridaya Ranjan Prasad Verma (supra)]. Thus, from the aforesaid

ingredients it is seen that Section 415 of the Indian Penal Code has two parts.

In the first part the person must dishonestly or fraudulently induce the

complainant to deliver any property; in the second part the person who

intentionally induce the complainant to do or omit to do a thing. That is to

say, in the first part, inducement must be dishonest or fraudulent and in the

second part the inducement should be intentional.

7.Baring in mind the aforesaid proposition of law now I revert back to the fact

of the case.Undisputedly an open tender was floated by the Hooghly Mohsin

College Authority for Retro-Conversion of Bibliographic records of its library.

The petitioner who participated in the said tender process was selected to

perform the aforesaid job and accordingly work order was issued in favour of

the petitioner's enterprise namely M/s AB Enterprise. It is also not in dispute

that the college authority issued a cheque bearing no. 184200 dated

30.03.2009 amounting to Rs.5,97,600/- in favour of petitioner's enterprise

namely M/s AB Enterprise. The dispute arose between the college authority

and the enterprise with regard to the payment of a security deposit of Rs. 2

lakhs. The State produced certified copy notice inviting tender. By such

quotation reputed vendors were asked to submit rates in sealed covers for

undertaking the work for Retro-Conversion of Bibliographic records in the

library of the college. Upon going through the said quotation there is no

reflection that the bidder who would be selected to perform the job was

supposed to deposit Rs. 2 lakhs as a security deposit. Be that as it may, the

petitioner's enterprise on 26.06.2009 got a pay order issued in favour of the

Principal, Hooghly Mohsin College, Chinsurah amounting to Rs. 2 lakhs being

no. 008362. As per the statement made in the FIR as well as the statement of

witnesses appearing in the case diary it is pertinent to note that the aforesaid

pay order was cancelled by the petitioner without informing the college

authority and the said amount was credited to the account of the petitioner's

enterprise in its own account being CC Account no. 17725. The petitioner has

annexed the letter issued by Principal, Hooghly Mohsin College under memo

no.559/L-1 dated 28thAugust, 2009 whereby the cashier of the college was

authorized to accept pay order no. 008593 dated 28.08.2009 amounting to

Rs.2 lakhs issued at the instance of the petitioner's enterprise and same was

accepted by the college authority on the subsequent date of lodgement of the

FIR. It has been categorically stated in the aforesaid letter that the previous

pay order was erroneously cancelled by the Bank. From the aforesaid

enumerated facts it has fallen that there was no dishonest or fraudulent

inducement by the petitioner to induce the complainant to deliver any property

or intentionally induce the complainant to do or omit to do a thing. It is also

noted that there are no iota of materials that the petitioner from the very

beginning had the intention to deceive the complainant. Simpliciter there was

a tender in which the petitioner's enterprise was selected and while performing

the job assigned certain amount was supposed to be deposited to the college

authority which was at first deposited and thereafter cancelled and

subsequent to the lodgement of the FIR the said amount has been deposited

and has been duly accepted by the college authority. In order to constitute an

offence of cheating there has to be intention to deceive in existence at the time

when the inducement is made. Mere failure to make payment or keep up

promise subsequently cannot be presumed to be act leading to cheating.

Further there is nothing either in the complaint and/or in the statement of

witnesses that any property was entrusted to the petitioner or the petitioner

had domain over any of the properties of the complainant which the petitioner

dishonestly converted to her own use so as to satisfy the ingredients of Section

405 of IPC punishable under Section 406 of IPC. Accordingly,it is found that

there are no such materials with regard to criminal breach of trust or of

cheating. On such score I concur with the submissions made on behalf of the

petitioner relying on the decision of the Hon'ble Supreme Court passed in S.W

Palanitkar versus State of Bihar (supra).The aforesaid decision of the

Hon'ble court has also been relied upon in its another decision passed in

International Advanced Research Centre for Powder Metallurgy and New

Materials (supra). The decision of Hon'ble Supreme Court passed in Uma

Sankar Gopalika (supra) also reiterates that the intention to cheat must

exist at the very inception.

8. The Hon'ble Supreme Court in G. Sagar Suri versus State of U.P reported

in (2002) 2 SCC 636 observed as follows:

"8.....It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of a criminal offence.Criminal

proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code.Jurisdiction under this section has to be exercised to prevent abuse of process of any court or otherwise to secure the ends of justice."

As it is found that there are no ingredients of criminal offence hence the

proceeding before the learned trial court needs to be intervened by invoking

Section 482 of the Code.

9.Accordingly criminal revisional application being CRR 668 of 2013 stands

allowed on contest.The proceeding being GR Case no. 943 of 2009 (arising out

of Chinsurah Police Station Case no. 205 of 2009 dated 27.08.2009) under

Sections 406/420 of the Indian Penal Code pending before the learned Chief

Judicial Magistrate, Chinsurah, Hooghly stands quashed.

11.All connected applications, if any, stand disposed of.

12. Interim orders, if any, stand vacated.

13. Let a copy of this order be sent to learned trial court for information.

14. Urgent Photostat Certified copy of this judgment, if applied for, be supplied