Punjab-Haryana High Court
Ashutoshanand Alias Aashu Baba And ... vs State Of Haryana on 6 August, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:100945
CRM-M-44508-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
270
CRM-M-44508-2023
Reserved on : 30.04.2024
Pronounced on : 06.08.2024
Ashutoshanand @ Aashu Baba and another ..... Petitioners
versus
State of Haryana and another ...... Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Ravi Sharma, Advocate
for the petitioners.
Mr. Ramesh Kumar Ambavta, AAG, Haryana.
None for respondent No.2.
****
PANKAJ JAIN, J. (Oral)
1. Present petition has been filed under Section 482 of Cr.P.C.
seeking quashing of FIR No.273 dated 30.08.2021, registered for offences
punishable under Sections 406 and 506 of IPC at Police Station Mundkati,
District Palwal.
2. Present FIR was registered at the instance of respondent No.2
who as per the office report though stands served but has opted not to
appear. The contents of the FIR read as under:-
"To the Deputy Superintendent of Police, Hodal
District Palwal Haryana. Subject: - Complaint
regarding plying of Mahindra Balero HR-30L-6353 on
lease and threatening to eliminate on asking for
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returning the same and paying the lease money and
further to involve in a false criminal case. Sir, I
Navneet Tewatia son of Shri Jagmohan Singh is
resident of B-2 Civil Lines Palwal Haryana. I have the
business of transport. I had purchased a Mahendera
Balero bearing No. HR-30L-6353 in the year 2013
which was used by me for my personal work. In this
vehicle, I used to visit my spiritual Guru Paramhans
Ashram Vinoga Shivpuri, Madhya Pardesh. Sometimes
my family members used to stay in the ashram and the
abovesaid Balero Jeep remained parked for months
together there. In Vinoga Ashram Bhagwandas
Badoniya son of Sunder Das resident of Shivpuri and
his companion Rahul Gupta @ Ashu son of Virender
Gupta resident of Aligarh also used to visiting the
ashram, who became acquainted with me. Bhagwan
Dass and Rahul Gupta contacted me many times and
offered to get the Balero vehicle engaged on contract as
you have been having many vehicles for which you
may be getting Rs 30,000/- per month as income and
the driver on the vehicle will also be getting salary,
which will be a livelihood for him. Thereafter,
Bhagwan Dass Badoniya, Rahul Gupta and one another
person, known to the Bhagwan Dass and Rahul Gupta,
came to me. At that time, I had gone to Filling Station
Sraye, Khataila, Tehsil Hodal, District Palwal, from
where all these three persons took away the Balero
vehicle from me and by saying that the documents
regarding contract for plying the vehicle on lease to be
sent later on. After three months of the taking away of
the Balero when I went to Shivpuri where Rahul Gupta
and Bhagwandas gave me Rs 20,000/- as cash and said
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that the payment of contract money is late but in future
the same will be in time and the documents will also be
sent earliest. Thereafter the Balero Jeep remained with
Bhagwandas. In the year 2019, Bhagwan Das and
Rahul Gupta stopped me paying the settled monthly
rent on different pretext. Being known I believed them.
After this, Bhagwandas and Rahul Gupta did not pay
me the anything on the pretext of Corona since 2020. In
the meanwhile, our spiritual Guru Swami Bajranand ji
got brain stroke, I visited him where Rahul Gupta was
also present and I asked there to Rahul Gupta that if
both of you cannot pay the settled amount, you may
return my Balero on which he said that you sell the
vehicle to us as the same is not running smoothly due
to accident. Keeping in view the condition of the
vehicle, I consented to sell the Balero Jeep to
Bhagwandas and Rahul Gupta and the consideration
amount was settled as Rs.3,56,000/-, but the
Bhagwandas and Rahul Gupta kept on giving time and
did not make the payment of settled amount of my
Balero Jeep till today. Sometimes ago, Bhagwandas
sent the documents of his known person on whatsapp
requesting to sent the NOC for transfer so that
consideration money may be paid. I refused to send the
paper and firstly demanded the balance settled amount
of running the Balero Jeep on lease on which
Bhagwandas and Rahul Gupta threatened to eliminate
me and asked to sell the vehicle to them. In case you
ever there to visit Shivpuri to take that vehicle, then 1
and Rahul Gupta will get involved in so many cases
and the price of the vehicle will be consumed on the
litigation. Rahul Gupta spoke to me that you don't
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know me, I have many goons in my group and I will
get your body thrown in the forest after killing you. Sir,
now I have to come to know that Bhagwandas and
Rahul Gupta are thief and mischievous type of person
whose brother Hemant and Rahul Gupta are wanted
Criminal Wing Haryana. Bhagwandas and Rahul Gupta
alias Ashu conniving with others have breached the
trust and cheating as well as threatened to kill. You are
requested to take strict legal action against the
abovesaid both persons i.e. Bhagwandas and Rahul
Gupta alias Ashu and my Balero jeep restored and to
get the misappopriated settled money by cheating. Sd/-
Navneet Tewatia.xxx"
3. Petitioners claim themselves to be disciples of Shri Paramhans
Swami Bajranandji Maharaj, who is stated to have expired on 23.05.2020.
It has been claimed that after the death of Swami Bajranandji Maharaj,
petitioner No.1 was unanimously appointed as Chairman of the Trust as
successor of the deceased-Swami. On 02.06.2020, one Ravinder started
interfering in the affairs of ashram. Ravinder has been illegally appointed
as self-styled Swami on 17.03.2021 and thus Ravinder is disputing the
authority of petitioner No.1 over the ashram. In order to create further
hurdles, he through one Satish got registered FIR No.0232 dated
01.07.2021 for offences punishable under Sections 380 and 457 IPC at
Police Station Chand Hut, District Palwal against the petitioners.
4. Petitioners approached this Court by way of CRM-M-31529-
2021 seeking pre-arrest bail which was allowed vide order dated
06.08.2021. In order to victimize the petitioners further, respondent No.2-
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complainant at the instance of said Ravinder, has now succeeded in getting
the present FIR No.273 registered against the petitioners again for offences
punishable under Sections 406 and 506 of IPC. Petitioners earlier
approached this Court by way of CRM-M-38366-2021 which stands
disposed off vide order dated 15.09.2021 observing as under:-
"xx xx xx
In the wake of the above, it would be expedient, if the
petition is disposed of, at this stage, in terms of the
statement made by learned State counsel. This Court is
sanguine that if any such representation, as indicated
above, is moved by the petitioners the concerned
authority shall consider and decide the same in the right
earnest and in accordance with law."
5. Counsel for the petitioners after referring to the aforesaid facts
and the order passed by this Court dated 15.09.2021 draws attention of this
Court to order dated 02.11.2021 passed by Inspector General of Police,
South Range, Rewari to submit despite the Superintendent of Police,
Palwal reporting to the Inspector General of Police that no concrete
evidence has come on file against the petitioners, the police authorities in
connivance with the complainant are persecuting the petitioners. He
submits that whole of the criminal proceedings have been designed to
dissuade the petitioners from conducting the affairs of the ashram. It is an
illegal device to arm-twist them to enable the respondents and their
ultimate head Ravinder to intrude into the ashram without having any
right. He further submits that it being patent abuse of process of law, FIR
needs to be quashed.
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6. Per contra, counsel for the State submits that status report by
way of affidavit of Sajjan Singh, HPS, Deputy Superintendent of Police,
Hodal, District Palwal already stands filed. Report under Section 173(2)
has been filed before the competent Court and the copy thereof has been
placed on record as Annexure R-1. He asserts that a bare perusal of
thereof would reveal that report under Section 173(2) has been filed before
the Trial Court at Hodal, Palwal after investigating agency found sufficient
evidence against the petitioners.
7. I have heard counsel for the parties and with their able assistance
have carefully gone through the records of the case.
8. In the considered opinion of this Court, plea raised by counsel
for the petitioners with respect to the FIR having been registered with an
intent to arm twist the petitioners cannot be scope of the present petition
under Section 482 Cr.P.C.
9. The issue to be adjudicated in proceedings under Section 482
Cr.P.C. is:
a) Whether the FIR is an abuse of process?
b) Whether contents of FIR constitute offence qua the
petitioners?
10. The test with respect to exercise of jurisdiction under Section
482 of the Code stands well laid by Apex Court in the case of State of
Haryana and others vs. Ch. Bhajan Lal and others reported as 1992
SCC (Cri) 426, which reads as under:-
"107. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
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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 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
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only a noncognizable 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."
11. The question thus before this Court is whether the allegations
levelled against the petitioners in the present case constitute offence
punishable under Section 406 IPC or not. Section 406 IPC prescribes
punishment for criminal breach of trust. Section 405 IPC defines criminal
breach of trust and the same reads as under:-
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"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 off 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".
12. A bare perusal of the aforesaid definition of criminal breach of
trust means, using or disposing of the property by a person who is
entrusted with or has otherwise dominion their over. Further such act of
user or disposal of the property must not only be dishonest, but should also
be in violation of any direction of law or any contract expressed or implied
relating to the entrustment.
13. Lately, in Sachin Garg vs. State of U.P. reported as 2024 SCC
OnLine SC 82, Apex Court had an occasion of dealing with necessary
ingredients to constitute offence punishable under Section 405 IPC.
Relying upon Deepak Gaba vs. State of Uttar Pradesh reported as
(2023) 3 SCC 423, Apex Court held as under:-
"xx xx xx
8. It was observed in the judgment under appeal that the
applicant has got the right of discharge which could be freely
taken up by him before the Trial Court. Mr. Mukul Rohatgi,
learned senior counsel has appeared in this matter on behalf of
the appellant along with Mr. Guru Krishna Kumar, while the
case of respondent no. 2 has been argued by Ms. Divya Jyoti
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Singh. State was represented before us by Mr. Sarvesh Singh
Baghel. The main contentions urged by Mr. Rohatgi is that the
complaint made against the appellant does not disclose any
criminal offence and at best, it is a commercial dispute, which
ought to be determined by a Civil Court. In so far as the
allegations of commission of offence under Sections 405 and
406 are concerned, he has relied on a judgment of this Court in
the case of Deepak Gaba v. State of Uttar Pradesh [(2023) 3
SCC 423]. This decision deals with the basic ingredients of a
complaint under Sections 405 and 406 of the 1860 Code and it
has been held in this judgment:--
"15. For Section 405 IPC to be attracted, the following
have to be established:
(a) the accused was entrusted with property, or entrusted
with dominion over property; (b) the accused had
dishonestly misappropriated or converted to their own
use that property, or dishonestly used or disposed of that
property or wilfully suffer any other person to do so; and
(c) 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
the discharge of such trust."
14. Likewise in Ashoke Basak vs. State of Maharashtra reported as
(2010) 10 SCC 660, Apex Court held that in order to constitute offence of
criminal breach of trust, it is necessary for the complainant to satisfy the
following ingredients observing as under:-
"xx xx xx
21. It is plain that for constituting an offence of criminal breach
of trust, the following ingredients must be satisfied:
(a) a person should have been entrusted with property, or
entrusted with dominion over property;
(b) that person should dishonestly misappropriate or
convert to his own use that property, or dishonestly use or
dispose of that property or wilfully suffer any other person
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to do so;
(c) 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 the
discharge of such trust."
15. Applying the aforesaid test to the allegations levelled in instant
FIR, it is evident that the gravamen of the allegations levelled against the
petitioners is with respect to retaining of Bolero vehicle belonging to the
complainant. The complainant himself avers that the vehicle was engaged
on contract @ Rs.30,000/- per month apart from the salary of the driver of
the vehicle. He alleges that when after 03 months he asked for the lease
money, he was only paid Rs.20,000/- in cash and later on the same was not
paid on the pretext of Covid-19. As per the contents of the complaint
further, the complainant agreed to sell the aforesaid vehicle to the
petitioners for an amount of Rs.3,56,000/-. It is further alleged that the
said amount has not been paid to him till today. It has been claimed by the
complainant himself that sometime prior to filing of the complaint,
petitioner No.2 sent documents on whatsapp requesting to send NOC
necessary for transfer so that the consideration money can be paid. The
complainant claims that he refused to send the papers till the settled
amount for sale of vehicle is paid to him. He further claims of having
threatened by petitioner No.1.
16. Thus, the entrustment of the vehicle is evident from the record.
However, the question is whether the petitioners are using the vehicle with
dishonest intention. In other words, the question before this Court is
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whether its a mere breach of agreement of sale or there is fraudulent or
dishonest user in violation of any law or contract that can give rise to
criminal prosecution. In Indian Oil Corporation vs. NEPC India Limited
reported as (2006) 6 SCC 736, Apex Court observed as under:-
"xx xx xx
13. While on this issue, it is necessary to take notice of a
growing tendency in business circles to convert purely civil
disputes into criminal cases. This is obviously on account of a
prevalent impression that civil law remedies are time consuming
and do not adequately protect the interests of lenders/creditors.
... 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
claims, which do not involve any criminal offence, by applying
pressure though criminal prosecution should be deprecated and
discouraged."
17. The same was reiterated by Supreme Court in the case of Mitesh
Kumar J. Shah vs. State of Karnataka reported as (2022) 14 SCC 572
holding as under:-
"xx xx xx
38. Having considered the relevant arguments of the parties and
decisions of this Court we are of the considered view that
existence of dishonest or fraudulent intention has not been made
out against the appellants. Though the instant dispute certainly
involves determination of issues which are of civil nature,
pursuant to which Respondent 2 has even instituted multiple
civil suits, one can by no means stretch the dispute to an extent,
so as to impart it a criminal colour. As has been rightly
emphasised upon by this Court, by way of an observation
rendered in Indian Oil Corpn. v. NEPC India Ltd. [Indian Oil
Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC
(Cri) 188] , as under : (SCC p. 749, para 14)
"14. While no one with a legitimate cause or grievance should
be prevented from seeking remedies available in criminal law, a
complainant who initiates or persists with a prosecution, being
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fully aware that the criminal proceedings are unwarranted and
his remedy lies only in civil law, should himself be made
accountable, at the end of such misconceived criminal
proceedings, in accordance with law."
18. Even in report filed under Section 173(2) Cr.P.C. placed on
record by the respondent No.1 as Annexure R-2 alongwith the status
report, the only evidence collected is in the form of seizure of vehicle
which is subject matter of dispute from the custody of the petitioners. The
vehicle being in custody or having been entrusted to the petitioners. is not
in dispute. Rather dispute is whether their action of putting the same to
their own use is dishonest or is in violation of any law to constitute offence
punishable under Section 406 IPC. Once complainant himself admits that
he handed over the vehicle to the petitioners for lease amount of
Rs.30,000/- per month and thereafter agreed to sell the same for an amount
of Rs.3,56,000/-, this Court finds that it will be tough to hold that the
petitioners had any dishonest intent in using the vehicle. More so, when
complainant also admits that respondents offered to pay him the money
subject to issuance of 'no objection certificate' which was necessary for
transfer of the vehicle, the offer complainant himself rejected.
19. Applying the aforesaid ratio to the factual matrix of the present
case, this Court finds that the present case would fall within the ambit of
categories enlisted by Apex Court in the case of Bhajan Lal (supra) by its
category No.2 and 3. Apart from that, this Court finds that dispute
between the parties to the contract of sell of vehicle regarding covenants
thereof has been given criminal colour which has led to registration of
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FIR. This is impermissible in law.
20. In view of above, this Court finds that the impugned FIR cannot
be sustained and needs to be quashed.
21. Consequently, the present petition is allowed. FIR No.273 dated
30.08.2021, registered for offences punishable under Sections 406 and 506
of IPC at Police Station Mundkati, District Palwal and all proceedings
arising therefrom, are, hereby, quashed qua the petitioners.
(PANKAJ JAIN)
06.08.2024 JUDGE
Dinesh
Whether speaking/reasoned Yes
Whether Reportable : No
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