Pierson Sam David vs State Of H.P
2024 Latest Caselaw 10387 HP

Himachal Pradesh High Court

Pierson Sam David vs State Of H.P on 26 July, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

2024:HHC:6305

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.7 of 2021 a/w Cr.MMO No.8 and 9 of 2021

.

Date of Decision: 26.07.2024

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1. Cr.MMO No.7 of 2021

Pierson Sam David

.......Petitioner Versus

State of H.P. ... Respondent

2. Cr.MMO No.8 of 2021 Alamgir Khan .......Petitioner Versus State of H.P. ... Respondent

_______________________________________________________

G. Selvamani Karan .......Petitioner Versus State of H.P. ... Respondent

_______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.

For the Petitioner(s): Mr. B.S.Thakur, Advocate.

For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General

with Mr. Ravi Chauhan, Deputy Advocate General.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Since all the petitions arise out of the same FIR, they

were taken up together for hearing and are being disposed of vide this

common order.

Whether the reporters of the local papers may be allowed to see the judgment?

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2. By way of above captioned petitions filed under Section

482 Cr.P.C, prayer has been made on behalf of the petitioners,

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namely, Pierson Sam David, Alamgir Khan and G.Selvalmani Karan,

who at relevant time were working as Executive Secretary and

Treasurers respectively at Shimla Sanitarium & Hospital of Seventh

Day Adventist, Chaura Maidan, Shimla, for quashing of FIR No.91 of

2014, dated 11.06.2014, registered at police Station, West Shimla,

District Shimla, Himachal Pradesh under Section 406 of IPC as well

as consequent proceedings pending in the competent Court of law.

3. Precisely, the facts of the case, as emerge from the

record are that FIR, sought to be quashed in the all the cases, came

to be lodged at the behest of respondent No.2, Dr. Salil Kumar Ali

(hereinafter referred to as the complainant), who at relevant time

was working as Head of the Department, Ophthalmology Unit with

Mobile Service Shimla Sanitarium & Hospital, Shimla, who alleged

that he was engaged on a contract employment with Shimla

Sanitarium & Hospital in the month of 2003 and such contractual

employment was renewed from time to time. As per last renewal of

contract, contract of the respondent/complainant was renewed upto

31st January, 2015. As per terms and conditions of the contract,

respondent/ complainant was to be given notice either verbal or

written regarding termination of his employment. However, while

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respondent/complainant was on leave w.e.f.23.5.2014 to 3.6.2014,

petitioners being responsible for management of the hospital

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concerned locked the office of the respondent/complainant and

redistributed the staff deputed alongwith him in Ophthalmology

Department in other section/departments

of the hospital. Though,

respondent/ complainant after having availed his leave, tried to join

his office, but he found his room locked. Though,

respondent/complainant repeatedly requested the management to

open the room and permit him to re-join, but in vain. In the FIR,

sought to be quashed, respondent/ complainant alleged that on

account of his not being permitted to join, his patients, who had been

taking treatment from him, are suffering. He submitted that since his

department has been reassigned to other sections of the hospital and

his personal equipments and papers, without which he could not do

justice with his work, were also confiscated, which action of

management of the hospital amounts to breach of trust. He alleged

that simple Ophthalmic Technician has been allowed to examine and

write the medical prescriptions without supervision of an Eye

Specialist Doctor, which is against all regulations. He also levelled

serious allegations with regard to quality of surgical equipments as

well as prices of drugs. In nutshell, respondent/complainant alleged

that poor people are being exploited by the hospital management. He

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alleged that till date, he has been not paid arrears on account of his

having conducted surgeries as well as OPDs. He alleged that

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cheques issued by the hospital concerned to discharge its liability also

came to be dishonoured and in that regard, proceedings under

Section 138 of the Instruments Act, is already pending in the

competent Court of law. He alleged that Shimla Sanitarium & Hospital

and its present CEO Sh. Selvamani Karan has a clear intent to cheat

him and perpetrate fraud not only to him, but to the patients coming in

good faith to the hospital. He alleged that he no longer can bear the

mental and financial burden on account of criminal and fraudulent

behaviour of the accused and as such, appropriate action, in

accordance with law, be taken against them. Taking note of aforesaid

allegations levelled in the FIR, as detailed hereinabove, a case under

Section 406 of IPC came to be registered against the petitioners.

Though, challan stands filed in the competent court of law, but

charges are still to be framed. It also emerge from the pleadings that

for recovery of arrears, if any, respondent No.2/complainant has

already filed civil suit, which is pending adjudication before this Court.

4. Precisely, the grouse of the petitioners as has been

highlighted in the petition and further canvassed by Mr. B.S.Thakur,

learned counsel for the petitioners, is that no case muchless under

Section 405 and 406 IPC is made out against the petitioners, rather

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bare perusal of the averments contained in the FIR, sought to be

quashed, clearly reveals that precise grouse of respondent No.2/

.

complainant is that he has been not paid salary for the period

specified in the FIR and in that regard, he has already filed civil suit,

which is pending adjudication before this Court. While making this

Court peruse Section 405 IPC, Mr. Thakur, vehemently argued that at

no point of time, petitioners herein ever came to be entrusted with

property, or with any dominion over property, which actually belongs

to trust. Mr. Thakur, further stated that there is no allegation that

petitioners herein dishonestly misappropriated or converted the

property of trust for their own use. Mr. Thakur, submitted that since

there is no dispute, if any, with regard to payment of provident fund,

case of the petitioners otherwise does not fall in Explanation 1 of

Section 405 of IPC. While making this Court peruse allegations

contained in the FIR, learned counsel for the petitioners submitted

that dispute sought to be raised by respondent No.2/complainant is

purely civil in nature and as such, police authorities otherwise should

not have lodged the FIR, especially when it is not in dispute that

respondent No.2/complainant has already filed civil suit for recovery

of the amount allegedly liable to be paid by the trust. Lastly, Mr.

Thakur, submitted that since no case muchless under Section 405 is

made out, no fruitful purpose would be served by launching

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prosecution against petitioners pursuant to the FIR lodged at the

behest of respondent No.2.complainant, which in any eventuality is

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likely to fail.

5. To the contrary, Mr. Rajan Kahol, learned Additional

Advocate General, while refuting aforesaid submissions made by

learned counsel for the petitioners, argued that apart from allegation

of non-payment of salary and other charges, respondent/complainant

has also levelled allegation of misappropriation of property of the trust

and as such, no illegality can be said to have been committed by the

respondent-State, while charging petitioners under Section 406 of

IPC.

6. Before ascertaining the correctness and genuineness of

the aforesaid submissions and counter submissions made on behalf

of learned counsel representing the parties, this Court deems it

necessary to discuss /elaborate the scope and competence of this

Court to quash the FIR as well as criminal proceedings, while

exercising power under Section 482 Cr.P.C.

7. A three-Judge Bench of the Hon'ble Apex Court in case

titled State of Karnataka vs. L. Muniswamy and others, 1977 (2)

SCC 699, held that High Court, while exercising power under Section

482 Cr.P.C., is entitled to quash the proceedings, if it comes to the

conclusion that allowing the proceeding to continue would be an

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abuse of the process of the Court or that the ends of justice require

that the proceeding ought to be quashed.

.

8. Subsequently, in case tilted State of Haryana and

others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, the

Hon'ble Apex Court, while elaborately discussing the scope and

competence of High Court to quash criminal proceedings under

Section 482 Cr.P.C laid down certain principles governing the

jurisdiction of High Court to exercise its power. After passing of

aforesaid judgment, issue with regard to exercise of power under

Section 482 Cr.P.C, again came to be considered by the Hon'ble

Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising

out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar and Ors. v.

State of U.P. and Anr., wherein it has been held that saving of the

High Court's inherent powers, both in civil and criminal matters, is

designed to achieve a salutary public purpose i.e. court proceedings

ought not to be permitted to degenerate into a weapon of harassment

or persecution.

9. The Hon'ble Apex Court in Prashant Bharti v. State

(NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment

titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC

330, reiterated that High Court has inherent powers under Section

482 Cr.P.C., to quash the proceedings against an accused, at the

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stage of issuing process, or at the stage of committal, or even at the

stage of framing of charge, but such power must always be used with

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caution, care and circumspection. In the aforesaid judgment, the

Hon'ble Apex Court concluded that while exercising its inherent

jurisdiction under Section 482 of the Cr.P.C., Court exercising such

power must be fully satisfied that the material produced by the

accused is such, that would lead to the conclusion, that his/their

defence is based on sound, reasonable, and indubitable facts and the

material adduced on record itself overrule the veracity of the

allegations contained in the accusations levelled by the

prosecution/complainant. Besides above, the Hon'ble Apex Court

further held that material relied upon by the accused should be such,

as would persuade a reasonable person to dismiss and condemn the

actual basis of the accusations as false. In such a situation, the

judicial conscience of the High Court would persuade it to exercise its

power under Section 482 of the Cr.P.C. to quash such criminal

proceedings, for that would prevent abuse of process of the court, and

secure the ends of justice. In the aforesaid judgment titled as

Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the

Hon'ble Apex Court has held as under:-

"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with

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by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)

29. The issue being examined in the instant case is the

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jurisdiction of the High Court under Section 482 of the

Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same

parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the

prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the

conclusion, that his/their defence is based on sound,

reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the

prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or

alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material

relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court

would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

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30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the

.

complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and

condemn the factual basis of the accusations as false.

30.3 Step three, whether the material relied upon by the accused, has not been refuted by the

prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal -

proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save

precious court time, which would otherwise be wasted in holding such a trial (as well as,

proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."

10. It is quite apparent from the bare perusal of aforesaid

judgments passed by the Hon'ble Apex Court from time to time that

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/her due to private and personal grudge, High Court while

exercising power under Section 482 Cr.P.C, can proceed to quash the

proceedings.

11. Recently, the Hon'ble Apex Court in case tilted Anand

Kumar Mohatta and Anr. v. State (Government of NCT of Delhi)

Department of Home and Anr, AIR 2019 SC 210, has held that

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abuse of process caused by FIR stands aggravated if the FIR has

taken the form of a charge sheet after investigation and as such, the

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abuse of law or miscarriage of justice can be rectified by the court

while exercising power under Section 482 Cr.P.C. The relevant paras

of the judgment are as under:

16. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr.

P.C and that this Court is hearing an appeal from an order under

Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: -

"482. Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such

orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the

process of any Court or otherwise to secure the ends of justice."

17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process

of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court ( G. Sagar Suri and Anr. V. State of U.P.

and Others, (2000) 2 SCC 636 (para 7), Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 (para 20). Indeed, it

would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process

caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."

12. Recently, the Hon'ble Apex Court in case titled Pramod

Suryabhan Pawar v. The State of Maharashtra and Anr, (2019) 9

SCC 608, has elaborated the scope of exercise of power under

Section 482 Cr.P.C, the relevant para whereof reads as under:-

"7. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section

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482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice.

.

The powers of the court under Section 482 are wide and the court is

vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as

it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by this Court. In Inder Mohan Goswami v State of Uttaranchal5, this Court observed.

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone

it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:

              (i)       to give effect to an order under the Code;
              (ii)       to prevent abuse of the process of the court,
                        and
              (iii)      to otherwise secure the ends of justice.

24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only

when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of

justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing

injustice by invoking inherent powers in absence of specific provisions in the statute."

8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v Bhajan Lal6 conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The

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court in Bhajan Lal noted that quashing may be appropriate where, (2007) 12 SCC 1 1992 Supp (1) SCC 335 "102. (1) Where the allegations made in the first information report or

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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 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). ..........

(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." In deciding

whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question

is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of Maharashtra, 2018 SCC OnLine SC3100

("Dhruvaram Sonar):

"13. It is clear that for quashing proceedings, meticulous

analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the

offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."

13. Aforesaid law, clearly stipulates that court can exercise

power under S.482 of the Code of Criminal Procedure, to quash

criminal proceedings, in cases, where the allegations made in the first

information report or the complaint, even if they are taken at their face

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value and accepted in their entirety do not prima facie constitute any

offence or make out a case against the accused.

.

14. Now being guided by the aforesaid proposition of law laid

down by the Hon'ble Apex Court, this Court would make an endeavor

to examine and consider the prayer made in the instant petition vis-à-

vis factual matrix of the case.

15. In the instant case, respondent-State has filed reply to

the petitions, wherein facts, as have been noticed hereinabove, are

not in dispute, rather stand admitted. Though, respondent No.2 was

issued notice with a specific direction to come present, however he

despite having received notice, failed to come present and as such,

was ordered to be proceeded against exparte.

16. Careful perusal of the material adduced on record, clearly

reveals that Dr. Salil Kumar Ali was serving as Eye Specialist on

contract basis in Shimla Sanitarium & Hospital, Chaura Maidan,

Shimla w.e.f. the years 2003 to 2012. It also emerge from the record

that last agreement had been arrived interse respondent No.2/

complainant and the management of the hospital with regard to

continuation of the service respondent No.2/complainant w.e.f.

January 2012 to January 2015. It also emerges from the record that

though on 23.05.2014, Dr. Salil Kumar Ali was on leave, but no

application for leave, if any, given was ever found by the Investigating

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Agency during investigation. Though, perusal of latest contract,

reveals that services of the respondent/complainant could not have

.

been dispensed with prior to 23.05.2014, but petitioner, while was on

leave w.e.f. 23.5.2014 to 3.6.2014, management decided to shift the

staff deputed with him to other departments and thereafter, charge of

ophthalmology Department was given to a Technician.It also emerged

in the investigation that Hospital Management acted contrary to the

agreement dated 17.05.2012 and it had also not released the salary

of the complainant, as a result thereof, wrongful loss was caused to

him. Besides above, respondent/complainant also rasied issue with

regard to certain illegalities and irregularities committed by the

Management in the sale and purchase of surgical equipments as well

as drugs, but it appears that aforesaid allegation never came to be

proved as such, police proceeded to charge the petitioners, who at

that relevant time were in the helm of affairs of the Management,

under Section 406 and 34 of IPC. To ascertain whether case, if any, is

made out under Section 406 IPC alongwith Section 34 IPC against

the petitioners, it would be apt to take note of the provisions contained

under Sections 405 and 406 of IPC, which reads as under:-

"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

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touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust"

Explanation 1.-- A person, being an employer 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 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 administered 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.

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."

17. Section 406 of IPC provides punishment for criminal

breach of trust, which has been otherwise defined under Section 405

of IPC. Bare perusal of Section 405 of IPC reveals that if the person

entrusted with the property or with any dominion over property,

dishonestly misappropriates or converts such property for his own

use 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 shall be liable to be punished under Section 406 of IPC,

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which provides punishment with imprisonment, which may extend to

three years or with fine or with both.

.

18. Having carefully perused the FIR, sought to be quashed,

in its entirety, this Court is persuaded to agree with learned counsel

for the petitioners that no case muchless under Section 405 and 406

of IPC is made out against the petitioners because it is none of the

case of the complainant that petitioners, named in the FIR, were ever

entrusted with the property of trust and thereafter, they dishonestly

misappropriated or converted the same for their own use, rather

specific allegation against the petitioners herein that they during

subsistence of contract interse respondent/complainant and Hospital

Management illegally terminated his services and also failed to clear

his dues. Precisely, dispute interse respondent/complainant and

Hospital Management is with regard to illegal termination of the

respondent/complainant and thereafter, payment of arrears, if any, if it

is so, this Court is in full agreement with learned counsel for the

petitioners that no case muchless under Section 405 and 406 of IPC

could be initiated against the petitioners.

19. Though, respondent/complainant apart from raising issue

of his illegal retrenchment and non-payment of salary, also raised

issue with regard material irregularities and illegalities committed by

the trustees in sale and purchase of surgical equipments and drugs,

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but since no cogent and convincing evidence ever came to be led on

record qua aforesaid aspect of the matter, police charged the

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petitioners herein only with Section 406 of IPC.

20. Needless to say, property of Shimla Sanatorium &

Hospital is owned and managed by the trust and at no point of time

trust ever lodged complaint with regard to misappropriation and

conversion of its property by the petitioners, rather petitioners being in

helm of affirms of the hospital, on the instructions of trust, proceeded

to remove respondent/complainant from the services, may be during

the subsistence of contract, if it is so, appropriate remedy for

redressal of grievance of the respondent/complainant, by no stretch of

imagination, could be by way of filing FIR, rather appropriate remedy

in that regard is/was to file civil suit. Record clearly reveals that

respondent/complainant has already filed civil suit for recovery of

arrears, which is pending adjudication before this Court.

21. Though, Explanation 1 to Section 405 of IPC, suggests

that a person, being an employer can deduct 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, but the same shall be deemed to have been entrusted

with the amount of the contribution so deducted by him and in case he

makes default in the payment of such contribution to the said Fund in

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violation of the said law, he shall be deemed to have dishonestly used

the amount of the said contribution in violation of a direction of law.

.

However, in the instant case, there is no allegation if any, levelled by

the respondent/complainant that amount, if any, on account of

provident fund was being withheld by the petitioners or they

misappropriated the same. FIR, sought to be quashed, is completely

silent with regard to non-payment of provident fund, if any, rather

precise allegation is with regard to non-payment of arrears of salary

as well as commission, which respondent-complainant had allegedly

earned after conducting surgeries/OPDs.

22. To invoke Section 405 of IPC, prosecution is always

under obligation to prove that beneficial interest in the property in

respect of which the offence is alleged to have been committed was

vested in some person other than the accused, and that the accused

held that property on behalf of that person. A relationship is created

between the transferor and transferee, whereunder the transferor

remains the owner of the property and the transferee has legal

custody of the property for the benefit of the transferor himself or

transferee has only the custody of the property for the benefit of the

transferor himself or someone else. Word used "entrustment" in the

aforesaid provision of law, is of great importance unless there is

entrustment, there can be no offence under aforesaid section 405 of

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IPC. See:- Ramaswamy Nadar vs. State of Madras AIR 1958 SC

.

23. In the case at hand, as has been discussed hereinabove,

there is no allegation of entrustment of the property, if any, of trust or

of the respondent/complainant and similarly there is no allegation that

property, if any, of trust or respondent/complainant ever came to be

dishonestly misappropriated by the petitioners and as such, it is not

understood on what basis police proceeded to launch prosecution

against the petitioners under Section 405 of IPC.

24. Final report under Section 173 Cr.P.C filed by the police,

if read in its entirety, nowhere suggests that sufficient evidence, if any,

has been adduced on record to connect the petitioners with the

offence alleged to have been committed under Section 405 and 406

of IPC, rather dispute being purely in civil nature should not have

been entertained by the police at the first instance. No doubt, charge,

if any, is yet to be framed by the competent court of law on the basis

of the material adduced on record alongwith the final report filed

under Section 173 Cr.P.C, but once bare perusal of contents of the

FIR as well as final report under Section 173 Cr.P.C submitted by the

police, clearly suggest that no case muchless under Section 405 and

406 of IPC is made out against the petitioners, prayer made on behalf

of the petitioners in the instant proceedings cannot be rejected.

2024:HHC:6305

25. Hon'ble Apex Court in case tilted Anand Kumar

Mohatta's case (supra), has categorically held that abuse of process

.

caused by FIR stands aggravated if the FIR has taken the form of a

charge sheet after investigation and such abuse of law or miscarriage

of justice can be rectified by court while exercising power under

Section 482 Cr.P.C. Since in the case at hand all liabilities of the

respondent/complainant flows from the agreement interse him and the

Management, he being aggrieved on account of his illegal

termination and non-payment of salaries, ought to have initiated

appropriate remedy , but certainly criminal proceedings initiated at the

behest of respondent No.2/complainant cannot be permitted to

proceed further to exert unnecessary pressure upon the accused,

named in the FIR, to succumb to the demands of the

respondent/complainant, legality and propriety of which can only be

decided in appropriate proceedings that too on the basis of pleadings

as well as evidence, if any, led on record.

26. Leaving everything aside, this Court finds that

respondent/complainant has already filed civil suit before this Court

for recovery of arrears, if any, on account of salary, which is pending

adjudication. Since for the reasons stated hereinabove, prosecution, if

permitted, is bound to fail in all probabilities, this Court sees no

2024:HHC:6305

reason to let petitioners suffer ordeal of protracted trial, which in any

eventuality, will culminate in the acquittal of the petitioners.

.

27. Consequently, in view of the detailed discussion made

hereinabove as well as law taken into consideration, the present

petitions are allowed and FIR No.91 of 2014, dated 11.06.2014 under

Section 406 IPC, registered at police Station West Shimla, District

Shimla, HP as well as consequent proceedings, if any, pending the

competent court of law are quashed and set-aside qua the petitioners.

The petitioners are discharged/acquitted henceforth. All pending

applications, stand disposed of.

(Sandeep Sharma), Judge July 26,2024

(shankar)