Madhya Pradesh High Court
Ashish Sanghi vs The State Of Madhya Pradesh on 21 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C No.7682/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 21st OF FEBRUARY, 2024
MISCELLANEOUS CRIMINAL CASE No.7682 of 2024
BETWEEN:-
ASHISH SANGHI S/O SURESH SANGHI
(AGRAWAL), AGED ABOUT 52 YEARS,
OCCUPATION: BUSINESS R/O GALI NO. 7
SHANKAR NAGAR RAIPUR, KHAMTARAI,
RAIPUR (CHHATTISGARH)
.....APPLICANT
(BY SHRI YADVENDRA DWIVEDI - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
POLICE STATION BICHHIYA DISTRICT
REWA (MADHYA PRADESH)
2. KUSH SHUKLA S/O LATE RAGHUNATH
PRASAD SHUKLA, AGED ABOUT 52 YEARS,
R/O OM TRADERS TOPKHANA, P.S.
BICCHIYA, DISTRICT REWA (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI K.S. BAGHEL - PUBLIC PROSECUTOR)
............................................................................................................................................
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed for
quashment of FIR in Crime No.215/2023 registered at Police Station
Bichhiya, District Rewa for offence under Sections 420 and 409 of IPC.
2. It is fairly conceded by counsel for the applicant that Police after
completing the investigation has also filed the charge-sheet.
3. Basic allegations against the applicant are that for supply of 50
Tons of Sariya, total amount of Rs.22,00,000/- was paid to the applicant
through Bank. However, only 25 Tons of Sariya worth Rs.15,94,740/-
has been sent and remaining 25 Tons of Sariya was not sent.
Furthermore, complainant had also sent Rs.45,00,000/- through Bank
for supply of additional 60 Tons of Sariya but applicant has neither
supplied the Sariya as ordered by the complainant nor has returned the
remaining amount.
4. During the course of arguments, it was fairly conceded by counsel
for the applicant that the entire supply has not been made by him and at
least 50 Tons of Sariya is yet to be dispatched to the complainant. The
only contention of counsel for the applicant is that the matter is civil in
nature and registration of criminal offence is unwarranted.
5. It is true that the tendency of complainant to convert civil dispute
into criminal dispute should be discouraged but the question is that
whether non-supply of goods after having received the advance amount
would amount to criminal offence also or it would amount to pure civil
dispute only.
6. Sections 420 and 409 of IPC read as under:-
"420. Cheating and dishonestly inducing
delivery of property.-- Whoever cheats and
thereby dishonestly induces the person deceived
to deliver any property to any person, or to make,
alter or destroy the whole or any part of a
valuable security, or anything which is signed or
sealed, and which is capable of being converted
into a valuable security, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall also
be liable to fine."
* * *
"409. Criminal breach of trust by public
servant, or by banker, merchant or agent.-
Whoever, being in any manner entrusted with
property, or with any dominion over property in
his capacity of a public servant or in the way of
his business as a banker, merchant, factor,
broker, attorney or agent, commits criminal
breach of trust in respect of that property, shall
be punished with imprisonment for life, or with
imprisonment of either description for a term
which may extend to ten years, and shall also be
liable to fine."
7. If a person has been entrusted with property in the way of his
business as merchant commits criminal breach of trust in respect of that
property, is liable to be punished. Similarly, whoever dishonestly
induces the person deceived to deliver any property to any person or to
make, alter or destroy the whole or any part of a valuable security, or
anything which is signed or sealed, and which is capable of being
converted into a valuable security, would amount to cheating and shall
be punished with imprisonment which may extend to seven years.
8. Huge amount has already been received by the applicant and it is
undisputed fact that he has not supplied the goods as promised by him.
According to the complainant, amounts were paid in the month of
September or October, 2022 and according to the applicant, even today
huge quantity of goods are still liable to be dispatched to the
complainant. Had it been a case of pure civil in nature, then either the
applicant should have dispatched the goods within the reasonable time
or should have refunded the amount back on account of his inability to
deliver the goods. Huge amount which has already been received by the
applicant has been retained by the applicant and he must be utilizing the
same for his own personal use.
9. The Supreme Court in the case of Kamlesh Kumari and Others
Vs. State of Uttar Pradesh and Another reported in (2015) 13 SCC
689 has held as under:-
"5. The appellants moved a petition under
Section 482 of Code of Criminal Procedure,
1973 (CrPC) before the High Court challenging
the criminal proceedings initiated against them
pleading that they are innocent and falsely
implicated in the case. However, they admitted
that they did had a talk regarding the sale of their
land through a broker Tara Chand and they
received an amount of Rs 5,00,000 as advance
money. It is alleged by the appellants that in their
petition before the High Court that though as per
the agreement within one month remaining sale
consideration was to be paid to them, but for two
years they kept on waiting for the full payment.
They also disclosed that in the year 2009, they
have already sold the property to third party, and
that is why as a counterblast the first information
report was got lodged by Respondent 2 in 2011
i.e. five years after the talks were held in 2006.
Further stating that the criminal proceedings are
based on malice, the appellants sought quashing
of the proceedings of criminal case. However,
the High Court, after hearing the parties and
perusal of the papers on record, declined to
interfere with the trial of the case. Hence this
appeal through special leave.
6. In the counter-affidavit filed on behalf of
Respondent 1 (State of Uttar Pradesh) it is stated
that the appellants were required to obtain
permission for execution of sale deed, from the
District Magistrate, in favour of Respondent 2,
by 4-6-2006. However, they failed to seek the
necessary permission. It is further stated in the
counter-affidavit that during investigation, it was
found that admittedly the appellants have
received Rs 9,00,000 on 11-10-2006 before the
witnesses, apart from Rs 5,00,000 earlier paid to
them. In Para 6, it is further stated that the
appellants received a further sum of Rs
14,00,000 on 30-9-2008 from the complainant
and the appellants again promised him that they
would be obtaining permission within two
months thereafter. The investigating officer has
further stated in the counter-affidavit filed on
behalf of the State that there was ample evidence
on record relating to payment of Rs 42,00,000 by
the complainant to the appellants and, as such,
cheating was committed by them by not only
denying to execute the sale deed but hurling
abuses at him and threatening him of dire
consequences.
7. Rejoinder-affidavit has been filed on behalf of
the appellants on 10-4-2015 in which it is
pleaded that the appellants have returned a total
sum of Rs 5,00,000 to Respondent 2, vide two
bank drafts, No. 379558 dated 6-2-2014 for Rs
50,000 and No. 135902 dated 5-3-2014 for Rs
4,50,000 both drawn on Canara Bank. It is
further stated in the rejoinder-affidavit that the
appellants have committed no cheating against
Respondent 2.
8. On behalf of the appellants, our attention is
drawn to Ram Biraji Devi v. Umesh Kumar
Singh [(2006) 6 SCC 669 : (2006) 3 SCC (Cri)
176], and it is contended that the High Court
should have quashed the proceedings as the
dispute between the parties is, in substance, of
property dispute. We have carefully gone
through the said case law and we find that the
facts of the said case cannot be said to be similar
to the present one. In the present case, after
investigation, charge-sheet has been filed, and
investigating officer has stated that an amount of
Rs 42,00,000 in several instalments was paid by
Respondent 2 to the appellants, which the
appellants appeared to have dishonestly retained
with them. From the rejoinder-affidavit, it
appears that the appellants have repaid only Rs
5,00,000 to Respondent 2 through two bank
drafts mentioned above, that too after charge-
sheet is filed. In such a situation, we cannot
apply the law laid down in Ram Biraji
Devi [(2006) 6 SCC 669 : (2006) 3 SCC (Cri)
176] to the case at hand.
9. In R. Kalyani v. Janak C. Mehta [(2009) 1
SCC 516 : (2009) 1 SCC (Cri) 567] , in paras 15-
16, this Court, interpreting the inherent powers of
the High Court under Section 482 CrPC, has laid
down the law as under: (SCC p. 523)
"15. Propositions of law
which emerge from the said
decisions are:
(1) The High Court ordinarily
would not exercise its inherent
jurisdiction to quash a criminal
proceeding and, in particular, a first
information report unless the
allegations contained therein, even if
given face value and taken to be
correct in their entirety, disclosed no
cognizable offence.
(2) For the said purpose the
Court, save and except in very
exceptional circumstances, would
not look to any document relied
upon by the defence.
(3) Such a power should be
exercised very sparingly. If the
allegations made in the FIR disclose
commission of an offence, the Court
shall not go beyond the same and
pass an order in favour of the
accused to hold absence of any mens
rea or actus reus.
(4) If the allegation discloses a
civil dispute, the same by itself may
not be a ground to hold that the
criminal proceedings should not be
allowed to continue.
16. It is furthermore well
known that no hard-and-fast rule can
be laid down. Each case has to be
considered on its own merits. The
Court, while exercising its inherent
jurisdiction, although would not
interfere with a genuine complaint
keeping in view the purport and
object for which the provisions of
Sections 482 and 483 of the Code of
Criminal Procedure had been
introduced by Parliament but would
not hesitate to exercise its
jurisdiction in appropriate cases.
One of the paramount duties of the
superior courts is to see that a person
who is apparently innocent is not
subjected to persecution and
humiliation on the basis of a false
and wholly untenable complaint."
10. This Court in the case of Hemant Singh and Others vs.
Raghvendra Singh and Another by order dated 14/02/2017 passed in
M.Cr.C. No.5730/2016 (Gwalior Bench) has held as under:-
''Thus, if the facts of this case are considered in
the light of the judgment passed by the Supreme
Court in the Case of Kamlesh Kumari (Supra),
then it would be clear that the applicants by
entering into an agreement to sell had received
an amount of Rs.6,29,550 by way of advance and
thereafter they did not turn up for execution of
sale deed and in spite of the notice issued by the
respondent no.1, they neither repayed the amount
so received by them at the time of the agreement
to sell nor they executed the sale deed. Thus,
prima facie the element of criminal intent is also
available and it cannot be said that the case is
predominantly of civil in nature."
11. It is well established principle of law that mere breach of contract
would not constitute an offence of cheating.
12. If the facts of the present case are considered, then it is clear that
amounts were paid in the month of September, 2022 and according to
the applicant, even today huge quantity of goods are still liable to be
dispatched to the complainant.
13. According to the FIR, applicant had failed to deliver the entire
quantity of Sariya in spite of the fact that the amount in advance was
received. In spite of that, he received an additional amount for supply of
additional 60 Tons of Sariya. If the applicant was not in a position to
fulfill his contractual obligations as per the advance amount received by
him on earlier occasion, then receipt of further amount clearly indicates
that the intention of the applicant right from very beginning was to cheat
the complainant by inducing him to deliver the property, otherwise
applicant should have refused to accept any additional advance amount
unless and until previous contractual obligations were fulfilled by him.
14. Thus, it appears that it is not a mere case of breach of contract but
in fact right from very inception, intention of the applicant was to cheat
the complainant.
15. Criminal breach of trust has been defined under Section 405 of
IPC which clearly provides that whoever, being in any manner entrusted
with 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 willfully
suffers any other person so to do, commits "criminal breach of trust".
16. Therefore, it is clear that if any person dishonestly
misappropriates any property entrusted to him under legal contract, then
he would be liable for prosecution under Section 409 of IPC.
17. Since applicant himself has admitted that entire quantity of Sariya
has not been supplied in spite of fact that more than one & half year is
passed, this Court is of considered opinion that prima facie case is made
out for prosecution of applicant under Sections 409, 420 of IPC.
18. Accordingly, no case is made out warranting interference.
19. Application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
S.M.
