Page No.# 1/6 vs State Of Assam And Anr
2021 Latest Caselaw 2450 Gua

                                                                  Page No.# 1/6

GAHC010279112019




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : Crl.Pet./1351/2019

         SMT. HEMA BISHT AND 4 ORS.
         D/O LATE KESHAV SINGH BISHT, COO WEST TRAVELS INDIA PVT. LTD.,
         G.S. CORPORATE GREENS, PLOT NO. 112, 4TH FLOOR, UDYOG VIHAR,
         PHASE 1, SECTOR 20, GURUGRAM, HARYANA, PIN-122016

         2: VIVEK LAROIA
          S/O LATE KRISGHAN KISHORE LAROIA
          CEO WEST TRAVELS INDIA PVT. LTD.
          G.S. CORPORATE GREENS
          PLOT NO. 112
          4TH FLOOR
          UDYOG VIHAR
          PHASE 1
          SECTOR 20
          GURUGRAM
          HARYANA
          PIN-122016

         3: RAJESH SANDIL
          S/O CHURURAM SANDIL
          MANAGER WEST TRAVELS INDIA PVT. LTD.
          G.S. CORPORATE GREENS
          PLOT NO. 112
          4TH FLOOR
          UDYOG VIHAR
          PHASE 1
          SECTOR 20
          GURUGRAM
          HARYANA
          PIN-122016

         4: RAMEEZ RAJA
          S/O AHSAN RAJA
          MANAGER WEST TRAVELS INDIA PVT. LTD.
                                                           Page No.# 2/6

             G.S. CORPORATE GREENS
             PLOT NO. 112
             4TH FLOOR
             UDYOG VIHAR
             PHASE 1
             SECTOR 20
             GURUGRAM
             HARYANA
             PIN-122016

            5: GAURAV GANDHI
             S/O JITENDRA GANDHI
             MANAGER WEST TRAVELS INDIA PVT. LTD.
             G.S. CORPORATE GREENS
             PLOT NO. 112
             4TH FLOOR
             UDYOG VIHAR
             PHASE 1
             SECTOR 20
             GURUGRAM
             HARYANA
             PIN-12201

            VERSUS

            STATE OF ASSAM AND ANR.
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:SANJIB CHANKRAVORTY
             S/O JADAV CHAKRAVORTY
             G-1
            ASTHA ENCLAVE
             LACHIT NAGAR
             GUWAHATI-0

Advocate for the Petitioner   : MR. S MITRA

Advocate for the Respondent : PP, ASSAM

Page No.# 3/6

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 07.10.2021

Heard the learned counsel Mr. S. Mitra, appearing for the petitioners. Also heard Mr. B. D. Konwar, learned senior counsel appearing for the private respondents as well as Mr. M.P. Goswami, learned Additional Public Prosecutor, Assam.

2. This is an application under Section 482 CrPC praying for quashing the criminal proceedings of Paltan Bazar P.S. Case No. 1129/2019 under Sections 406/420 of the IPC.

3. The petitioners are officials of Wise Travels India Pvt. Ltd. On the other hand, the private respondent is the owner of Luit Tours and Travels. The petitioners took services of the private respondent, who supplied vehicles to their clients in the entire North East India. Because of the aforesaid business transaction, in the financial year 2018-2019, the outstanding amount payable to the private respondent was Rs.4,30,236/-. The private respondent requested the petitioners to pay the aforesaid sum of money.

4. The private respondent claimed that the petitioners did not respond to his request rather they threatened him with dire consequences. Narrating the aforesaid facts the private respondent had lodged an FIR before the Police which is registered as Paltan Bazar P.S. Case No.1129/2019 under Sections 406 and 420 of the Indian Penal Code.

5. Mr. Mitra has submitted that it is a pure civil dispute which has been unnecessarily given the colour of a criminal case.

6. Per contra, Mr. Konwar submits that even civil disputes have elements of a criminal case.

7. I have bestowed my anxious consideration to the submissions made by both sides in the light of the factual scenario given rise to this criminal petition.

8. The petitioners used the services of the private respondent and did not pay the monetary consideration. Thus, this fact constitutes the offences under Sections 406 and 420 of the Indian Penal Code. At this stage, a brief visit to Sections 405 and 415 which defines criminal breach of trust and cheating respectively would be fruitful. These Sections read as under:-

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

[Explanation 2[1].--A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall Page No.# 4/6

be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and admin- istered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]". Section 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 or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section".

9. The primary ingredient of the offence of criminal breach of trust is entrustment of property. If any property is entrusted with a person and if that person dishonestly uses or disposes of the said property then only the offence of criminal breach of trust could be complete. Similarly, if a person fraudulently dishonestly induces another person induces a person to deliver any property to any person or to give consent that any person shall retain any property is called cheating. Sections 406 and 420 prescribe punishment for the offences of criminal breach of trust and of cheating.

10. The transaction between the petitioners and the private respondent is purely civil dispute and the FIR does not disclose even a prima facie case under Sections 406 and 420 of the IPC.

11. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 , the Supreme Court has held as under --

"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 extraordinary 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) 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 FIR do not disclose a cognizable offence, justifying an Page No.# 5/6

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 FIR 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 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."

12. Coming back to the case in hand, 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. 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.

13. The power under Section 482 of the CrPC is exercised by the High Court to prevent abuse of the process of the Court and for reaching the ends of justice. The FIR does not disclose the ingredients of criminal breach of trust and cheating. The civil dispute has been given a colour of criminal case. Allowing such a case to proceed further would amount to abuse of the process of the Court because there is absolutely no possibility that the petitioners would be convicted in future.

14. This Court, therefore, has reasoned to hold that this is a fit case for exercising the power under Section 482 of the CrPC. Therefore, the proceedings pertaining to Paltan Bazar P.S. Case No. 1129/2019 under Sections 406/420 of the IPC is quashed.

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15. The criminal petition stands disposed of accordingly.

JUDGE

Comparing Assistant