Madras High Court
Sonal Lahiri vs The Sub Inspector Of Police on 25 August, 2022
Crl.O.P.No.4115 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 22.08.2022
Date of Verdict : 25.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.4115 of 2020
and Crl.M.P.No.2369 of 2020
Sonal Lahiri ... Petitioner
Vs.
1. The Sub Inspector of Police,
Dhenkanikottai Police Station,
Krishnagiri District,
(In Crime No.199/2019)
2. Commander V.K.Kanwar ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records in Crime No.199 of 2019 on the file of the first
respondent police and quash the FIR dated 16.08.2019 therein insofar as the
first accused is concerned.
For Petitioner : Mr.V.Karthick, Senior Counsel
For Mr.M.Arvind Subramaniyam
For Respondents
For R1 : Mr.A.Gopinath
Government Advocate (Crl. Side)
For R2 : Mr.N.R.Elango, Senior Counsel
For Mr.M.S.Murali
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Crl.O.P.No.4115 of 2020
ORDER
This petition has been filed to quash the FIR registered in Crime
No.199 of 2019 on the file of the first respondent Police for the offences under
Sections 406, 424, 420 & 506(2) of IPC as against the petitioner.
2. The second respondent lodged complaint alleging that the
petitioner was living with the second respondent for more than twelve years
and thereafter she had taken away the documents and movables viz., jewels
and cash of Rs.1,88,000/- which was kept for disbursement to contractors. He
had asked her to return the documents and movables which was taken away by
her for which, she refused to return the same. It is further alleged that the
petitioner along with second accused threatened the second respondent/defacto
complainant with dire consequences.
3. Heard Mr.V.Karthick, learned Senior Counsel appearing for the
petitioner, Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing
for the first respondent police and Mr.N.R.Elango, learned Senior Counsel
appearing for the second respondent
4. It is seen that there are totally two accused in which, the petitioner
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Crl.O.P.No.4115 of 2020
is arrayed as first accused. The second accused died. The petitioner got married
in the year 1993, with one Lt.Anil Katoch of the Indian Navy and they adopted
a female child, who is now 22 years old. Due to difference of opinion, the
petitioner divorced her husband and living with her parents in Mumbai. During
the year 2007, the petitioner met the second respondent who was also in the
Indian Navy and they started living together. The first marriage of the second
respondent was subsisting and even still now is subsisting, since the divorce
proceedings initiated by the second respondent is pending as against his wife.
5. It is not disputed that the petitioner and the second respondent
were living in relationship for the past twelve years. During the year 2013, they
purchased two flats bearing flat Nos.401 & 402 in Goa. While being so, there
was a quarrel between them due to which, the petitioner was driven out from
her house. The second respondent resigned from his job and he purchased a
farm house for horticulture development in Thally near Denkanikottai, where
he is at present residing. Again, the petitioner moved to her flat No.402 at Goa
with the knowledge of the second respondent.
6. While being so, on 28.04.2014, the second respondent assaulted
the petitioner which has resulted in registration of FIR in Crime No.95 of 2015.
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Crl.O.P.No.4115 of 2020
Further there was negotiation between them and again she joined with the
second respondent. During the year 2018, again the petitioner was mentally
and physically abused by the second respondent which led her to return to Goa
and she was staying in her flat at Goa. Thereafter, she got married with the
second accused in the month of January, 2019 and she was living with the
second accused in his house. In the month of April, 2019, the petitioner went to
her flat to collect her personal belongings. At that juncture, there was a quarrel
between the petitioner and second respondent, which has resulted the
registration of FIR in Crime No.68 of 2019 as against the second respondent.
Therefore, the second respondent also lodged complaint which is registered in
Crime No.199 of 2019 and it is under challenge in the present quash Petition.
Thus, it is clear that the present impugned FIR has been registered only after
registration of the FIR as against the second respondent.
7. As per the allegations, no offence is made out under Sections 420,
406, 424 & 506(2) of IPC as against the petitioner herein. The second
respondent has alleged in the complaint that the petitioner has committed
offences under Sections 406 and 420 of IPC. It would thus be necessary to
examine the ingredients of the above offences and whether the allegations made
in the complaint, read on their face, attract those offences under the Penal
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Crl.O.P.No.4115 of 2020
Code. Section 405 of Penal Code reads thus:-
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".
8. A careful reading of Section 405 of IPC shows that the ingredients
of a criminal breach of trust are as follows:-
(i) A person should have been entrusted with property,
or entrusted with dominion over property;
(ii) That person should dishonestly misappropriate or
convert to their own use that property, or dishonestly use or
dispose of that property or willfully suffer any other person
to do so; and
(iii) That such misappropriation, conversion, use or
disposal should be in violation of any direction of law
prescribing the mode in which such trust is to be discharged,
or of any legal contract which the person has made, touching
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Crl.O.P.No.4115 of 2020
the discharge of such trust.
Entrustment is an essential ingredient of the offence. A person who dishonestly
misappropriates property entrusted to them contrary to the terms of an
obligation imposed is liable for a criminal breach of trust and is punished under
Section 406 of the Penal Code.
9. It is relevant to extract the provisions under Section 420 of the
Penal Code as follows :-
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.
The ingredients to constitute an offence under Section 420 of IPC are as
follows :-
(i) A person must commit the offence of cheating under
Section 415 and
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Crl.O.P.No.4115 of 2020
(ii) The person cheated must be dishonestly induced to
(a) deliver property to any person or (b) make, alter or
destroy valuable security or anything signed or sealed and
capable of being converted into valuable security.
Cheating is an essential ingredient for an act to constitute an offence under
Section 420. In the case on hand, the flat was purchased in the name of the
petitioner and the second respondent and therefore, there is no question of
cheating or criminal breach of trust. There are no allegations as against the
petitioner that she induced the second respondent to deliver any property and
there was no allegation of deception against the petitioner herein. Therefore, no
offence is made out under Sections 406 & 420 of IPC.
10. It is relevant to rely upon the judgment made by the Honourable
Supreme Court of India in the case of M/s. Indian Oil Corporation Vs. NEPC
India Limited and others reported in (2006) 6 SCC 736, held that the civil
liability cannot be converted into criminal liability and it is necessary to take
notice of a growing tendency in business circle to convert purely civil dispute in
criminal case. This is obviously on account of prevalent impression that civil
law remedies are time consuming and do not adequately protect the interest of
lender/creditors. Such a tendency is seen in several family disputes also,
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Crl.O.P.No.4115 of 2020
leading to irretrievable breakdown of marriages/families. There is also an
impression that if a person could somehow be entangled in a criminal
prosecution, there is a likelihood of imminent settlement. Any effort to settle
civil disputes and claim which do not involve any criminal offence by applying
pressure through criminal prosecution should be deprecated and dishonoured.
11. In the case of G.Sagar Suri Vs. State of Uttar Pradesh reported
in 2000 (2) SCC 636, the Hon'ble Supreme Court of India held as follows:-
“It is to be seen if a matter, which is essentially of
civil nature, has been given a cloak of criminal offence,
criminal proceedings are not a short cut of other remedies
available in law. Before issuing process a criminal Court
has to exercise a great deal of caution. For the accused it
is a serious matter. This Court has laid certain principles
on the basis of which High Court is to exercise its
jurisdiction under Section 482 of the Code. Jurisdiction
under this Section has to be exercised to prevent abuse of
the process of any Court or otherwise to secure the ends of
justice.”
12. Insofar as the offence under Section 506(ii) of I.P.C is concerned,
threat should be a real one and not just a mere words when the person uttering
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Crl.O.P.No.4115 of 2020
does not exactly mean what he says and also when the person to whom threat
is launched does not feel threatened actually. Whereas, in the case on hand,
there is no averment to attract the offence under Section 506(ii) of I.P.C. It
cannot be imputed as against the petitioner, since there was no threats or
physical injury caused to the second respondent
13. That apart, the second accused filed petition for anticipatory bail
in Crl.O.P.No.2118 of 2020, since he apprehends arrest at the hands of the first
respondent in pursuant to the present impugned FIR. While pending the
anticipatory bail, the petitioner returned the original documents of the
properties and other articles, though she is a joint owner of the flats. Further
the second accused also now died. Therefore, the present FIR is nothing but
clear abuse of process of law and it has been lodged with malafide intention.
14. It is relevant to rely upon the land mark Judgment of the
Honourable Supreme Court of India in the case of State of Haryana and
others Vs. Bhajanlal and others reported in 1992 Supp (1) SCC 335, in
which, the Honourable Supreme Court of India has laid down the following
categories of instances wherein inherent powers can be exercised in order to
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Crl.O.P.No.4115 of 2020
secure the ends of justice as follows:-
“(a) 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;
(b) where the allegations in the First Information Report
and other materials, if any, accompanying the F.I.R. 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) of
the Code;
(c) 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;
(d) 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;
(e) 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;
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Crl.O.P.No.4115 of 2020
(f) 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;
(g) 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.”
The above judgment is squarely applicable to the case on hand and the present
FIR is liable to be quashed.
15. Accordingly, the FIR registered in Crime No.199 of 2019 on the
file of the first respondent Police is hereby quashed and the Criminal Original
Petition stands allowed. Consequently, connected Miscellaneous Petitions is
closed.
25.08.2022
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
rts
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Crl.O.P.No.4115 of 2020
G.K.ILANTHIRAIYAN, J.
rts
To
1. The Sub Inspector of Police,
Dhenkanikottai Police Station,
Krishnagiri District,
2. The Public Prosecutor
Madras High Court,
Chennai.
order in
Crl.O.P.No.4115 of 2020
and Crl.M.P.No.2369 of 2020
25.08.2022
https://www.mhc.tn.gov.in/judis
