Parminder Jeet Singh & Anr. vs Kuljit Singh
2009 Latest Caselaw 421 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI


%                         Date of decision: February 06, 2009

+                   Crl.M.C. 3678/2007 & Crl. M.A.
                    No. 13448/07


#     PARMINDER JEET SINGH & ANR. ...... Petitioner
!            Through : Mr. Arvind Kumar, Adv.
                               Ms. Neelam Rathore, Adv.
                               Petitioners in person.

                              Versus


$     KULJIT SINGH                           ..... Respondent
^                   Through : Mr. Manish Tiwari, Adv.
                              Respondent in person.

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?              Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                     Yes

                          JUDGMENT

ARUNA SURESH, J.

1. In December 2000 Gurbachan Singh, since

deceased who happened to be the husband of

made a request to the respondent for a friendly

loan of Rs. 4 lacs as he was going through some

bad phase and needed some money for his

business. Respondent advanced loan of Rs. 4 lacs

in two installments in December, 2000. Gurbachan

Singh issued three post-dated cheques bearing No.

685442 dated 5.1.2004 for Rs. 1,00,000/-, 685443

dated 5.1.2004 for Rs. 1,00,000/- and 685444 dated

15.1.2004 for Rs. 2,00,000/- drawn on Federal

Bank Limited, Civil Line, Agra, in favour of

respondent as an assurance for repayment of the

loan. Gurbachan Singh expired on 15.1.2001.

After his death respondent approached the

petitioners in January, 2004 and asked them to

repay the friendly loan of Rs. 4 lacs. The cheques

were not presented for encashment on the request

of the petitioners as they were not having sufficient

funds. Thereafter respondent continued to request

the petitioners to repay the friendly loan amount.

But the petitioners did not repay the loan amount

taken by Gurbachan Singh and also allegedly by

petitioner No. 2. A legal notice dated 26.12.2006

was served upon the petitioners and a reminder

was sent on 8.2.2007. Since petitioners failed to

pay the loan amount, respondent filed a complaint

under Sections 406/420 Indian Penal Code

(hereinafter referred to as IPC) against the

petitioners.

2. Learned trial court vide its order dated 16.10.2007

took cognizance of offence under Section 406 IPC

and summoned both the petitioners. Aggrieved by

the said order of the trial court, present petition

under Section 482 Cr.P.C. has been filed seeking

quashing of the complaint as well as the impugned

summoning order of the MM.

3. Mr. Arvind Kumar, learned counsel for the

petitioners, has submitted that cause of action for

filing the complaint arose in December 2000

whereas the complaint was filed in June 2007 and

was hopelessly barred by period of limitation at the

time when it was presented and also that complaint

does not disclose any cause of action, is frivolous,

vexatious and oppressive. It is further argued that

the loan, if any, advanced to Gurbachan Singh

ensued civil liability and no offence within the

meaning of Section 406 IPC is shown to have been

committed by the petitioners. It is also argued by

the learned counsel for the petitioners that no

particulars of the alleged cash payment of Rs. 4

lacs in two installments have been provided in the

complaint and that the respondent allegedly

secured the loan amount by taking alleged post-

dated cheques against the alleged loan in no

manner attracts the provisions of Section 406 IPC.

Since there was no breach of trust, no offence

under Section 406 IPC is made out.

4. Jurisdiction of this Court is also disputed by the

petitioners as according to them no part of cause of

action arose in Delhi. The cheques were issued at

Agra and petitioners were resident of Agra at the

time of issuance of the cheques.

5. It is further submitted by the learned counsel for

the petitioners that respondent who happened to

be a close relative of the petitioners managed to lay

his hands on the cheque book of deceased

Gurbachan Singh after his death and misused the

cheques by forging the signatures of Gurbachan

Singh with ulterior motives to defraud and cheat

the petitioners. The complaint having been filed

malafidely, learned MM failed to appreciate the

evidence and the facts pleaded in the complaint

and acted mechanically while passing the

impugned order. Therefore, neither the complaint

nor the summoning order dated 16.10.2007 are

sustainable and are liable to be quashed.

6. Mr. Manish Tiwari, learned counsel for the

respondent, has submitted that petitioner No. 2

along with Gurbachan Singh had approached the

respondent for the said loan of Rs. 4 lacs and she

had also assured that the loan amount would be

paid after some time. She became dishonest after

the death of Gurbachan Singh and with malafide

intentions had been putting off the respondent on

one pretext or the other with a view not to repay

the loan amount along with interest accrued

thereon. It is urged that under the circumstances

the petition is without any merits and should be

dismissed. Reliance is placed on the following

judgments:

1. Zandu Pharmaceutical Works Ltd. and others v. Mohd. Sharaful Haque and another - (2005) 1 SCC 122.

2. State of M.P. v. Awadh Kishore Gupta and others - (2004) 1 SCC 691.

3. Bhola Nath Arora and another v. The State - 1982 Crl. L. J. 1482.

4. State of Bihar v. Murad Ali Khan and others - AIR 1989 SC 1.

5. Rajesh Bajaj v. State NCT of Delhi & Ors. - 1999 I AD (Cr.) S.C. 545.

6. Krishna Devi Sood @ Purni Devi v. State NCT of Delhi & Ors. - 2007 (3) JCC 2337.

7. The admitted facts of this case are:

a. Parties to the petition are closely related.

Petitioner No. 2 happened to be the sister-

in-law (Jethani) of the sister of the

respondent and petitioner No. 1 happened

to be son of petitioner No. 2.

b. The amount of Rs. 4 lacs was purportedly

advanced as a friendly loan in two

installments in December, 2000.

c. As an assurance for repayment of this loan

amount three post-dated cheques bearing

No. 685442 dated 5.1.2004 for Rs.

1,00,000/-, 685443 dated 5.1.2004 for Rs.

1,00,000/- and 685444 dated 15.1.2004 for

Rs. 2,00,000/- drawn on Federal Bank

Limited, Civil Line, Agra, were purportedly

issued by Gurbachan Singh in favour of the

respondent.

d. Gurbachan Singh died on 15.1.2001.

e. Complainant approached the petitioners in

January 2004 and sought repayment of the

advanced friendly loan.

f. The legal notice of demand dated

26.12.2004 and reminder dated 8.2.2007

were sent to the petitioners and the

complaint was filed on 5.6.2007.

8. In view of the admitted facts it is obvious that at

the time when Gurbachan Singh had taken friendly

loan he had no intention not to return back the loan

amount. It is surprising that the cheques allegedly

issued by Gurbachan Singh in favour of respondent

were dated 5.1.2004 i.e. after three years of the

raising of the alleged loan from the respondent.

Advanced cheques issued by Gurbachan Singh

were never presented by the respondent for

encashment within the period of their validity for

the reasons best known to the respondent. After

the death of Gurbachan Singh his account must

have been closed or transferred in the name of the

petitioners. Undisputedly the claim of the

respondent for Rs. 4 lacs with interest @12% per

annum had become barred by period of limitation

for a civil remedy when first oral demand was

made in January 2004.

9. Loan was paid to Gurbachan Singh and not to the

petitioners. Loan must have been utilised by

Gurbachan Singh during his life time as he needed

the money for his commercial purposes i.e.

business. Since, as per the allegations in the

complaint respondent had not paid any amount as

part of the loan to the petitioners, they cannot be

said to have malafide intentions not to return back

the loan amount to the respondent. Respondent

had never entrusted the petitioners with any money

much less Rs. 4 lacs and therefore to involve them

for an offence of criminal breach of trust under

Section 406 IPC is neither just, proper nor legal.

10. To make out an offence under Section 406 IPC

following ingredients of criminal breach of trust

are required to be made out in the complaint:

a. A person should be entrusted with a

property or with dominion over a property.

b. The said person dishonestly uses or

disposes of that property.

c. Such user or disposal of the property was

in violation of any direction of law

prescribing the manner in which the such

trust is to be discharged or of any legal

contract which such person had made

touching the discharge of such trust.

d. Such person is also liable for criminal

breach of trust if he wilfully suffers any

other person so to do.

11. None of these ingredients have been made out from

the averments contained in the complaint. As

already stated above, prima facie there is no

evidence to indicate that complainant had

entrusted the petitioners with Rs. 4 lacs. In fact

the said money was allegedly advanced as friendly

loan to Gurbachan Singh and not to the petitioners.

Gurbachan Singh had issued three post-dated

cheques which were surprisingly accepted by the

respondent. No prudent man would accept post-

dated cheques beyond three years knowing it well

that any claim after three years would become

barred by period of limitation. There is no

evidence to indicate that the petitioners had

misappropriated or done away with the money

allegedly advanced to Gurbachan Singh; their

predecessor in interest. The averments in the

complaint clearly indicate that it was a transaction

of loan and on failure of Gurbachan Singh to repay

the same or the petitioners as the case may be, the

dispute if any was essentially of civil in nature. No

criminality is involved nor any such malafide

intention to commit breach of trust is reflected

from the facts contained in the complaint and the

evidence of the complainant placed on record.

12. Under these circumstances, the trial court went

wrong when it took cognizance of the offence

under Section 406 IPC and summoned the

petitioners vide impugned order dated 16.10.2007.

Summoning of a person is a serious matter and the

Magistrate therefore should have applied his mind

after considering the evidence available on the

record and the contents of the complaint in a

reasonable manner instead of proceeding with the

complaint and summoning the petitioners in a

mechanical manner. His order should have

indicated that before taking cognizance of the

offence and summoning the accused persons he

had weighed the material available on record and

had applied his mind for coming to a conclusion

that prima facie an offence was made out against

the petitioners.

13. Under these circumstances, none of the cases

referred to and relied upon by the counsel for the

respondent, as above, have any bearing to the facts

and circumstances of this case.

14. Hence petition is allowed. Complaint No. 156/2001

and summoning order dated 16.10.2007 are hereby

quashed.

Attested copy of the order be sent to the trial court.

(ARUNA SURESH) JUDGE February 06, 2009 jk