Delhi High Court
K.P.S. Dagur vs Darshan Singh on 10 August, 2010
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1709/2007
K.P.S.DAGUR .... Petitioner
Through Mr. Abhishek Aggarwal, Adv.
versus
DARSHAN SINGH .... Respondent
Through Mr. V. Babu Joseph, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 10.08.2010
1. The petitioner, Deputy General Manager, Domestic Resources
Department (Customer Relation), Industrial Development Bank of India
Ltd. has challenged the summoning order dated 18th September, 2006,
passed on a private criminal complaint made by the respondent, Mr.
Darshan Singh.
2. This private complaint was filed on 10th February, 2006, inter alia,
stating that the respondent had purchased a bond with a face value of
Rs. 5,000/- on 22nd February, 1992, which was to be redeemed on 31st
March, 2002 at a premium of 5% of the face value. The respondent was
Crl.M.C.No.1709/2007 Page 1
entitled to interest @ 15% per annum payable half yearly with effect
from 31st March, 1992 till redemption. It is stated in the complaint that
legal notice was served on the petitioner on 10th March, 2004 and
thereafter the maturity proceeds of Rs. 5,250/- were paid. Thus, there
was delay of two years in payment of the maturity proceeds. The
second allegation made in the complaint is that the respondent wrote a
letter dated 24th December, 2005 asking for comprehensive details of
interest, etc. paid to him since 15th June, 1992 onwards, but the
petitioner herein had not replied to the said letter.
3. Learned counsel for the petitioner submits that the surrender
value of the bond was to be paid on deposit of the bond certificate by
the registered bondholder. It is stated that there was delay in the
deposit of the bond certificate and, therefore, maturity proceeds could
not be paid. Learned counsel for the petitioner relies upon the terms on
which allotments were made. The relevant term of allotment, reads as
under:-
"The holders of Regular Return Bonds must get
their name(s) registered with IDBI at the end of 10
years from the date of allotment, on the basis of a
record date to be specified by IDBI at that time.
Redemption of Bonds will be made in accordance
Crl.M.C.No.1709/2007 Page 2
with the Register of Bondholders at the end of 10
years. The Bonds will be redeemed only on the
surrender of the Bond Certificates by the registered
Bondholder(s)."
4. With regard to non-payment of interest, it is submitted that IDBI
had obtained details from Investor Services of India Ltd. for dispatch and
payment of interest warrants as per the prescribed schedule. Investor
Services of India Ltd. has given details of interest warrants dispatched to
the respondent with dates. It is further stated by the petitioner that
they have verified from Andhra Bank, Karol Bagh, New Delhi with regard
to the encashment of the interest warrants. The said bank has been able
to give details of four warrants and certified that payments were duly
deposited in the account of the respondent. With regard to other
warrants, the bank has stated that these details are very old and they
cannot confirm the same.
5. Learned counsel for the respondent has submitted that there was
delay in payment and interest payments have not been made. It is
submitted that interest of justice and equity requires that the petitioner
should face prosecution.
6. I have examined the contents of the complaint. The relevant
Crl.M.C.No.1709/2007 Page 3
portion reads:-
"3. That the accused served a legal notice on
10.3.2004 and the accused has paid Rs. 5,250/- only
after lapse of 12 years. Copy of the notice alongwith
postal receipt is attached herewith and marked C/2
(colly).
4. That the complaint wrote another letter dt.
24.12.2005 asking for comprehensive details of the
dividends/bonus etc. granted to RR00000124 since
15.6.1992 till date, and the accused has not replied
to the letter. A copy of the letter dt. 24.12.2005 is
attached herewith and marked C/3 along with copy
of the latest return of the complainant and
proforma No.ISIL/SR-I/RR/305 dated 25/5/98 is also
attached herewith for your kind perusal.
5. That it is further submitted that the accused has
played fraud with the complainant by
misappropriating the aforesaid amount and also
cheated by adopting malpractice with the
complainant. The accused has not even bothered to
acknowledge the letter/correspondence sent by the
complainant which implies that the accused has
concealed the real position of payment and has
denied the liabilities of payment to the complainant
so far.
6. That the accused has malafide intention to grab
the interest incurred on the capital amount of Rs.
5,000/- for which the complainant is entitled to
recover by legal means by filing complaint in the
appropriate court of law."
7. Contents of the complaint do not disclose any criminal offence.
With regard to non-payment of half yearly interest, no details are given
in the complaint. The complaint in fact only refers to a letter dated 24th
Crl.M.C.No.1709/2007 Page 4
December, 2005 by which the respondent had made a complaint and
has asked for details of interest warrants. It is alleged that the petitioner
did not reply to this letter. Failure to reply cannot and does not
constitute any offence. Even with regard to non-payment of the
maturity proceeds of the bonds on redemption, the clause relating to
return of the original bond as per the terms of allotment is clear. The
bonds were to be redeemed on surrender of the bond certificate by the
registered bondholder. Bonds were transferable and, therefore,
surrender of the bond certificate was required.
8. Even otherwise the facts as averred in the complaint do not
establish a case under section 406 of the Indian Penal Code. Section 406
of the Indian Penal Code reads as under:-
"Section 406. Punishment for criminal breach of
trust-Whoever commits criminal breach of trust
shall be punished with imprisonment of either
description for a term which may extend to three
years, or with fine, or with both."
9. The essential ingredient of Section 406 are (i) Entrusting any
person with property or with any dominion over property, (ii) the person
entrusted (a) dishonestly misappropriating or converting to his own use
that property; or (b) dishonestly using or disposing of that property or
willfully 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, or (ii) of any legal contract made touching the discharge of
such trust.
Crl.M.C.No.1709/2007 Page 5
10. Mere delay in payment without requisite intention of dishonesty
or willfulness does not make out a case under Section 406 of the Indian
Penal Code. The said ingredient is missing and not established. The
petition is allowed and the summoning order dated 18th September,
2006 is quashed.
11. At this stage, learned counsel for the petitioner submits that the
respondent can visit office of the petitioner with full details and in case
any interest warrant has not been encashed for whatever reason, they
shall ensure that payment is made. In this connection, learned counsel
for the petitioner states that respondent has to produce his bank pass
book for the relevant period or certificate from his bank to show that
the interest warrant has not been encashed. The said statement is
taken on record. The question of civil liability has not been examined or
considered.
SANJIV KHANNA, J.
AUGUST 10, 2010
Nazir/VKR/P
Crl.M.C.No.1709/2007 Page 6
