Gandharb Singh Bhadwal vs State & Ors.
2012 Latest Caselaw 2822 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             RESERVED ON : 24.04.2012
                             PRONOUNCED ON : 30.04.2012

+     CRL.MC 470/2012

      Gandharb Singh Bhadwal                     ..... Petitioner
                     Through:      Petitioner in person.

                  versus


      STATE & Ors.                            ..... Respondents

                       Through:    Ms. Rajdipa Behura, APP for
                       State


       CORAM:
       HON'BLE MS. JUSTICE PRATIBHA RANI

%
JUSTICE PRATIBHA RANI

1. The petitioner has filed this petition under Section 482 Cr.PC feeling aggrieved from the order dated 22.12.2011 passed by learned ASJ whereby the revision petition preferred by him against the order of learned MM dated 17.7.2009 was dismissed.

2. In brief, the case of the petitioner is that in the year 1996, he deposited Rs.55,000/- for one year in his name and in the names of his son and wife with M/s McDowell Krest Finance Limited. Subsequently, the name of the company was changed to M/s Krest Finlease Ltd.

3. The petitioner deposited a sum of Rs.30,000/- in his own name, Rs.15,000/- in the name of his son and Rs.10,000/- in the name of his wife in the year 1996. The interest accrued on the fixed deposit was assured to be 15.19% per annum. The fixed deposit was to mature in the year 1997. The FDR was forcibly renewed and retained despite repeated reminders. He contacted the Company Law Board to get back the money, however, vide letter dated 20.1.2004, it was informed that the company had gone into liquidation and an Official Liquidator (OL) has been appointed. He was advised to file a claim before the OL which was filed on 24.02.2004 but no payment has been made to him. On trying to get the information under RTI Act, he got reply that the ex Directors of the company have not handed over the assets of the company. He filed a complaint under Section 200 Cr.PC seeking directions under Section 156(3) Cr.PC for getting the FIR registered under Section 420, 406, 409 and 120B IPC. The said complaint was dismissed by learned MM vide order dated 17.7.2009 observing that neither cheating nor any breach of trust was made out.

4. The order passed by learned MM was impugned before the learned ASJ by filing a revision petition No.242/2009 against the company as well as its directors. Before learned ASJ also, the contention of the petitioner was that he deposited Rs.55,000/- in his own name and in the name of his wife and son for a fixed period of 5 years @ interest of 15.19 % per annum in the year 1996 but has failed to get back his money

and that the FDR was renewed forcibly. The learned ASJ also came to the conclusion that the order by Ld.M.M dismissing the complaint impugned before him does not suffer from any legal infirmity. The reasoning given by learned ASJ in para 4 are extracted as under:

It is admitted fact that the amount was deposited by the revisionist herein in the year 1996 for the period of one year. The amount had to be matured in the year 1997. The complaint has been filed in the year 2009. It is the admitted fact that the revisionist had taken up his matter for refund before the official liquidator. The official liquidator had replied to the revisionist stating that at present there was no fund in the company to liquidate the liability of the revisionist. The company was wound up by the order of the Hon‟ble Madras High Court passed on 3.7.2000 on an application of Canara Bank.

When the respondent no.1, the company, to which the deposit was made was wound up, then how the ingredient of cheating has been made out, this Court fails to understand. Cheating has been defined in section 415 IPC. It requires the deception of any person since beginning. Considering the circumstance when the company was wound up by the order of the Hon‟ble Madras High Court, deception since beginning on the part of the director managing the company cannot be made out. The same reason is applied in respect of the offence under sections 406 and 420 IPC also. Learned MM has dealt extensibly every aspect as to why no offence has been made out in view of the facts and circumstances on record."

5. The petitioner before this Court also submitted that during all these years, he had been corresponding with the Company Law Board and OL to get back his money. But on not being able to get back the amount invested by him with respondent no.1 company, he filed a complaint which disclosed

commission of offence punishable under Sections 420, 406, 409 and 120B IPC and the Court should have ordered for registration of FIR and helped him in getting back his money.

The petitioner claimed it to be a case of cheating by the respondent company as the amount invested by him was never returned though it was invested for one year and thereafter FDR was renewed forcibly and till date not a single penny has been paid to him.

After going through the contents of the complaint, I find that the facts narrated herein revealed a money transaction wherein the amount was invested by the petitioner with the company in the hope of higher interest returns. The complaint was filed by the petitioner only in the year 2007 whereas the amount was invested by him in the year 1996 and that the date of maturity of FDR was in the year 1997. Thus, for a long period of ten years, the petitioner did not claim that it was a case of cheating or breach of trust. In the year 1997, when the petitioner claims that his FDR was forcibly renewed, at that time, he could have availed necessary civil or criminal remedy available to him under the law. He claimed to have been corresponding with the Company Law Board all these years and only after getting the information on 20.01.2004 that the company has gone into liquidation that he filed the claim before the OL on 24.2.2004. The complaint being filed on 4.12.2007 i.e. almost after a period of three years the respondent company having gone in liquidation, in itself was

sufficient reason not to proceed against the persons arrayed as accused in the complaint case. In the complaint, no act of inducement on the part of the company or its directors has been alleged and there is not even an iota of evidence to infer that the company or its directors had the intention to cheat the petitioner from the very inception. Whatever averment regarding cheating or breach of trust have been made in the complaint relating to the subsequent conduct of the company when it has gone into liquidation and the amount due to the petitioner remained unpaid for the reasons disclosed to the petitioner in reply to his RTI application. In petition under Section 482 Cr.PC in para 2 the petitioner has claimed that:

"The said company had issued two cheques Nos. 3811 and 4264 for Rs.569.63+ Rs.569.63 = Rs.1139.26 dated 23.12.1997, in the name of the petitioner, which had bounced."

6. However, it is nowhere alleged that any action was taken against the company on dishonour of the abovementioned two cheques or non return of the money on maturity of the FDR in the year 1997. In Hira Lal Hari Lal Bhagwati Vs. C.B.I., New Delhi [AIR 2003 SC 2545] the Apex Court held as under:

"It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise of representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be

complied with after importation of the machine. Since the GCS could not comply with it and, therefore, it rightly paid the necessary duties without taking advantages of the exemption certificate. The conduct of the GCS or the appellant in their capacities as office bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise. We have read the charge sheet as a whole. There is no allegation in the First Information Report or the Charge sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what where the roles played by the appellants in the alleged offence. The appellants, in our view, could not be attributed any mens rea of evasion of customs duty or cheating the Government of India as the cancer society is a non profit organization and, therefore, the allegation against the appellants leveled by the prosecution are unsustainable. Kar Vivad Samadhan Scheme Certificate along with the Duncan's and Sushila Ranl's judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process.

7. In V.Y. Jose & Anr. V State of Gujarat and anr. [(2009) 3 SCC 78 the Apex Court held as under:

"18. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The Supreme Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of the court. It has a duty in terms of

Section 483 of the Code of Criminal Procedure to supervise the functioning of the trial courts.

19. An offence of cheating may consist of two classes of cases;

(1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here;

(2) When by reason of such deception, the complainant has not done or omitted to do anything which he would not do or omit to do if he was not deceived or induced by the accused.

20. It is in that sense, a distinction between a mere breach of contract and the offence of cheating should be borne in mind. We, having regard to the facts and circumstances of the case, are of the opinion that no case has been made out and against the appellant so as to hold that he should face the criminal trial."

8. In the instant case, the allegations made in the complaint do not disclose the necessary ingredients to constitute the offence punishable under Sections 420, 406, 409 and 120B IPC. Merely because the amount of Rs.55,000/- invested by the petitioner with the company remained unpaid, is in itself not sufficient to infer the dishonest intention on the part of the company existed from the very inception. Inaction on the part of the petitioner for a long period of ten years i.e. the date when his FDR matured and allowed to be renewed forcibly or the two cheques cheques Nos. 3811 and 4264 for Rs.569.63+ Rs.569.63 = Rs.1139.26 dated 23.12.1997, in the name of the petitioner bounced, was a sufficient reason not to initiate criminal proceedings against the respondent company especially when the respondent company had been in liquidation for a period of about three years prior to the date of

filing of the complaint.

9. This Court cannot exercise its inherent power to make a civil dispute the subject matter of criminal trial. There is no merit in the present petition and the same is hereby dismissed.

PRATIBHA RANI (JUDGE)

APRIL 30, 2012 „rd‟