2012 ALL MR (Cri) 277
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. KHANWILKAR AND P.D. KODE, JJ.
Shri Nitin Himanshu Sinha & Ors. Vs. Shri Pankaj Narayan Karva & Ors.
Criminal Writ Petition No.244 of 2008
28th September, 2011
Petitioner Counsel: Mr. RAJIV PATIL, SACHIN PUNDE
Respondent Counsel: Mr. S.P. KADAM, Mr. J.P. YAGNIK, Mr. VIVEK SALUNKE
Penal Code (1860), S.405 r.w. Ss.23, 24 - Criminal breach of trust - 72 computers were entrusted to petitioners - Petitioners were required to use them only upon payment of Rs.1450/- per computer - Rent in arrears from November 2006 - Computers retained and used despite repeated demands to pay rent or return computers - Complaint filed on 14.08.2007 - Held said complaint prima facie disclosed commission of offence under S.405.
All Cargo Movers (India) Pvt. Ltd., & Ors. Vs. Dhanesh Badarmal Jain & Anr, 2008 ALL MR (Cri) 306 (S.C.)=(2007) 14 SCC 776 [Para 6,18]
Sharon Michael Vs. State of Tamil Nadu & Anr, (2009) 3 SCC 375 [Para 6,18]
Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr, 2007 ALL MR (Cri) 2618 (S.C.)=(2007) 7 SCC 373 [Para 6,18]
State of Haryana and others Vs. Ch. Bhajanlal and others, AIR 1992 SC 604 [Para 11,19]
P. D. KODE, J. :- Mr.Rajiv Patil learned Counsel for the petitioners submitted that petitioners, out of the reliefs prayed, are pressing the Petition only for the relief of quashing and setting aside Crime no.621 of 2007 and investigation effected therein. The petition is considered only for said reliefs as pressed.
2. The said Crime No.621/2007 was registered with respondent No.4- Kothrud police station, Pune, on 14.8.2007 at 18:00 hours for offence under section 406 r/w. Section 34 of Indian Penal Code, upon the information / complaint lodged by respondent No.1 (proprietor of Shri Balaji Computers) against petitioners -Directors of Kraft Wagon Design Private Limited (Company registered under Companies Act, 1956) and respondent no.5. It was alleged that though 37 computers for use on monthly rent of Rs.1450/- per computer were entrusted to petitioners and respondent No.5, in the month of August,2005, uptill the date of lodging the complaint, they failed and neglected to pay the agreed rent since month of November-2006. Thus an amount of Rs.12,25,020/- is not paid to respondent no.1 i.e. the rent of Rs.4,75,020/- for 37 computers and cost of the computers Rs.7,50,000/-. Petitioners and respondent no.5 neither returned said computers nor paid such amount in spite of demand from time to time made by respondent no.1. Similarly, the Directors of the said Company had also taken 35 computers on the rent of Rs.1400/- per computer from respondent No.2 -Girish Subhash Shinde, resident of Kothrud, Pune. They did not pay the amount of rent since November, 2006 and the cost of the computers and thus, total amount Rs.21,70,313/-. Thus, Petitioners and Respondent No.5 had committed offence of criminal breach of trust.
3. Mr.Rajiv Patil learned Counsel for the petitioners urged that complaint lodged by respondent no.1 fails to disclose commission of any offence much less alleged offence of criminal breach of trust. He urged that bare reading of the complaint reveals that the transaction between the parties was essentially of civil nature. By inviting attention to the vouchers at pages-32-A to 32-F, all dated 11.5.2007 he urged that the said five vouchers reveal that five cheques, each amounting to Rs.51,244/- were handed over to Balaji Computers towards part of full and final payment of hire and purchase of 37 Personal Computers, with a rider of presenting the cheque for clearing only upon replacing / repairing 14 personal computers out of 37 Personal Computers provided. He urged that receiving of the said vouchers and cheques by Balaji Computers - respondent No.1 clearly denotes that the real transaction between the parties was of civil nature i.e purchase of 37 personal computers under hire-purchase agreement. He further urged that even accepting the case as alleged by the respondent No.1 in the complaint that the computers were given on rent in the month of August,2005, the further recital in the complaint that the rent had allegedly remained to be paid since November-2006 implies the rent for earlier period having been paid and thus the dispute was in relation to the non payment of rent. He urged that the reason for non-payment of rent was evident from the said vouchers, which denotes that out of 37 computers provided, 14 computers required repair/replacement. He thus contended that the complaint fails to make out case of dishonest intent on the part of the petitioners for not paying agreed rent and/or agreed installment of the property of respondent No.1 taken on rent or purchased under hire purchase agreement. He thus contended that the complaint prima facie fails to make out any case of the petitioners having committed offence of criminal breach of trust.
4. By inviting attention to Exhibit-C, N.C complaint lodged by one of the employee of Kraft Wagon Private Limited i.e the company of which the petitioners are Directors, to the effect that on 10.7.2007 upon the said employee having asked respondent no.1 to enter the office of the company of the petitioners after obtaining the permission, the respondent no.1 had abused and threatened him, the learned Counsel urged that as a counter blast to the said incident and NC lodged, respondent no.1 has lodged false complaint for shielding the fault of supplying faulty computers and further failure to repair or replace them as asked by the petitioners. He further urged that malafide intent on part of respondent No.1 in lodging the complaint is apparent from the further event of getting the petitioner No.1 arrested and seizing of 72 computers through Kothrud police immediately in the midnight of 15th August,2007 in connection with crime registered.
5. The learned Counsel urged that as the transaction between the parties was of civil nature, the respondent no.1 could have well availed appropriate remedy for his grievances. However, by lodging of such a complaint not disclosing the commission of an offence on the part of the petitioners and foremostly by respondent no.5, who was not at all connected with the transaction regarding said computers, with ulterior purpose of hiding own fault of supplying faulty computers respondent No.1 had abused the process of law. He urged that entertaining such a complaint has further resulted in arresting the petitioner No.1 who was a businessman of repute. It was urged that having regard to the above, the said complaint and the investigation thereon deserves to be quashed and set aside as prayed by the petitioners by allowing the petition.
6. The learned Counsel in support of his submission placed reliance upon the decisions in a case of i) All Cargo Movers (India) Pvt. Ltd., & Ors. Vs. Dhanesh Badarmal Jain & Anr reported in (2007) 14 Supreme Court Cases 776 : [2008 ALL MR (Cri) 306 (S.C.)]; ii) Sharon Michael Vs. State of Tamil Nadu & Anr reported in (2009) 3 Supreme Court Cases 375 iii) Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr reported in (2007) 7 Supreme Court Cases 373 : [2007 ALL MR (Cri) 2618 (S.C.)].
7. Mr. S. P. Kadam, learned counsel for the Respondent Nos 1 and 2 urged that there is no merit in the petition preferred. He urged that the recitals in the complaint squarely reveals acts amounting to the offence complained were committed by the petitioners and respondent No.5. He urged that the fact of petitioners and respondent no.5 dishonestly retained and used the property of respondent Nos 1 and 2 entrusted with them without paying rent after November, 2006 is squarely disclosed from the complaint. He urged that the same is also evident from the vouchers pointed on the part of the petitioners. He urged as the computers were given on the rent, the petitioners and respondent No.5 in event of non payment of the rent had no semblance of right to retain and use the said property of respondent Nos.1 & 2. The petitioners and respondent No.5 having retained the same and having further used the same even after demand, clearly denotes entrusted property of respondent Nos.1 & 2, being used by petitioner No.1 and respondent No.5 in breach of trust upon which the same was entrusted to them.
8. The learned Counsel for respondent Nos.1 & 2 further urged that merely because the computers were handed over under the agreement on rent, will not absolve the petitioners and respondent No.5 from the acts later on committed by them and amounting to the offence as complained by the respondent no.1. He urged that since complaint/information of commission of cogniazable offence can be lodged by anybody merely because respondent No.1 had included an offence committed with regard to the property of respondent No.2 can never be a ground for quashing the complaint as canvassed. He further urged that even reason advanced by the petitioners for non payment of rent being confined to 14 computers requiring repairs/replacement, the same itself fails to explain nonpayment of the rent for remaining computers and further more dishonest intention to retain and use of said remaining computers without payment of any rent since November, 2006, in spite of repeated demands for the same made by respondent No.1. He further urged that even so called explanation advanced being in the nature of defence of the petitioners, the consideration thereof at present stage is wholly irrelevant as substance, if any in the same, can be determined only at the trial.
9. The learned Counsel contended that the alleged incident regarding which non cognizable offence was registered upon the complaint of employee of the petitioner having occurred on 10th July, 2007, the complaint lodged by respondent No.1 on 14.8.2007 i..e. much later on after about one month, cannot be termed as being lodged as a counter-blast to the same. He further urged that merely because respondent No.4 had initially called the petitioner for enquiry and not hurriedly registered the offence, would not warrant an inference that the same was disclosing only a civil transaction and not commission of offence.
10. Mr.J. P.Yagnik, learned APP for respondent No.4 adopting the submissions canvassed on behalf of respondent Nos.1 and 2 supported registration of an offence and investigation thereon as necessary ingredients of commission of offence of criminal breach of trust regarding property of respondent Nos.1 & 2 were spelt from the complaint lodged by respondent No.1. He further urged that since the police were bound to take an action after registration of crime, merely because petitioner No.1 was arrested and computers i.e. the property involved in the offence was seized by police would not lead to the conclusion that the police had taken the action malafide, for oblique purpose as tried to be canvassed on part of the petitioners.
11. We have carefully perused the record and the complaint in the light of submissions canvassed by rival parties. Considering the question involved being in respect of exercising special jurisdiction of this Court and / or exercising inherent powers under Section 482 of Code of Criminal Procedure for quashing of First Information Report/Crime, it will not be out of place to take into consideration the observations made by the Apex Court in the case of State of Haryana and others Vs. Ch. Bhajanlal and others, reported in A.I.R. 1992 Supreme Court 604, in paragraph No.108 and 109 to the effect :-
"108. In the backdrop 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 extra ordinary 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 primafacie 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 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.
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 F.I.R. 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.
109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F..I.R. or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. [emphasis supplied]
12. Now considering present case in the light of aforesaid guidelines, it will be necessary to ascertain whether the impugned complaint prima facie discloses ingredients of the offence complained. The said offence is defined in the Indian Penal Code (hereinafter referred as Code, for brevity), 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 touching the discharge of such trust, or willfully suffers any other person so to do, commits, "criminal breach of trust"
13. Thus, considering said definition particularly the emphasized portions from the same, it can be safely said that a person can be said to have committed an offence of criminal breach of trust in event of himself being entrusted with property or with any dominion over the property, converting the same to his own use or dishonestly using the same in violation of any direction of the law prescribing the mode in which such a trust is to be discharged,or of any legal contract.
14. Since dishonest user of entrusted property in violation of the legal contract of discharging the trust being contemplated for the same amounting to the offence of criminal breach of trust, it will be necessary to look into definition of "dishonestly" and so also the definitions of the other words embodied therein, which are as under :-
"24. "Dishonestly". Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"
"23. Wrongful gain"- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss" - "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully. Losing Wrongfully - A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property."
15. Now, considering emphasized portions from the said definitions, it is amply clear that a person can be said to be dishonestly using the entrusted property in the event of himself having used the same with an intention of causing wrongful gain to himself or wrongful loss to the owner of the said property.
16. On the aforesaid backdrop, considering recitals in the impugned complaint, the same, amongst other, in terms reveals that 37 computers were entrusted by respondent No.1 and 35 by respondent No.2 to the petitioners and respondent No.5 on rent. Even as per the agreement entered at the inception, the petitioners and respondent No.5 were required to use said entrusted property only upon the payment of rent. Needless to add that no use of said entrusted property was permissible without payment of agreed rent per computer. On the said backdrop, considering further recitals in the complaint reveals specific contention of the petitioners and respondent No.5 having continued to use the said property i.e.computers entrusted without payment of any rent since November, 2006. The same also reveals that they had dishonestly retained the said computers in spite of repeated demands for the same and so also for the rent/price amount made by Respondent No.1. From all these allegations, it is clear that petitioners and respondent No.1 had retained the said entrusted property and were using the same inspite of termination of the agreement by the owners by asking them to return the same. Thus, such retention of property and user thereof was to the detriment and causing wrongful loss to the respondent No.1. The said act on the part of petitioners and respondent No.1, prima facie, are capable of attracting the provisions of Section 405 of the Criminal Breach of trust. Such an inference is apparent as no material was brought to our attention either from the Petition or from the complaint showing that even in such contingencies, petitioners were legally entitled for retention and use of the said property or respondent no.1 and 2 were not legally entitled for the same. In view of the same, we find it extremely difficult to accept that the said complaint prima facie does not disclose commission of offence under Section 406 being committed by petitioners and respondent No.5.
17. Mr. Rajiv Patil, learned counsel for the petitioner though strenuously tried to canvas that computers being given for use on payment of rent, non payment of rent would be merely breach of said condition of contract, no offence can be said to be disclosed from the complaint lodged. We are unable to accede to the said submission as the said submission ignores the vital aspect of petitioners and Respondent No.5 not having a semblance of right to retain the said computers after non payment of rent for any reason and furthermore even after demand to return the computers by respondent No.1 i.e. an act indicative of contract being terminated. In the same context, we may not hasten to add that even considering the reason alleged for non payment of agreed rent as incorporated in self made documents i.e. the vouchers pointed also being with regard to only 14 computers requiring repairs / replacement also fails to explain the retention and use of remaining computers without payment of rent for such a long period. Similarly his submission that initially the property was handed over under an agreement and hence breach of any terms of agreement would not entitle respondent Nos.1 & 2 to pursue a criminal remedy, will not deserve any credence as firstly the further acts committed in violation of agreement entered earlier being in the nature of commission of an offence and secondly, same act in certain contingencies is capable of giving rise to civil as well as criminal liability. So also, his submissions that respondent no.4 having acted in malafide manner will not also deserve any credence as such inference is not permissible from the matters of prompt action taken by the police after registration of a crime pointed by him, as rightly canvassed by learned A.P.P..
18. Lastly, with regard to the decisions in the case of (i) All Cargo Movers (India) Pvt. Ltd. [2008 ALL MR (Cri) 306 (S.C.)] (supra), (ii) Sharon Michael (supra) & (iii) Vir Prakash Sharma [2007 ALL MR (Cri) 2618 (S.C.)] (supra), we do not propose to make threadbare discussion of each of them, as perusal of the same also reveals that even in the said decisions the basic principle of complaint disclosing the necessary ingredients of an offence complained or otherwise has been primarily taken into account while deciding the question of quashing the complaints involved in the said cases. The decision in the case of All Cargo Movers, out of the aforesaid decisions, though expounds that breach of contract simplicitor does not constitute an offence, in the present case the allegation in the complaint is not restricted to such aspect and shows further acts of commission and omission constituting offence committed on part of the petitioners and respondent No.5. The said decision, therefore, would be of no assistance to the petitioners.
19. In the premises aforesaid, as indicated earlier, the offence of commission of criminal breach of trust being prima facie disclosed from the complaint and impugned case not falling within any of the categories as indicated by the Apex Court, in the decision of Bhajanlal Vs. State of Haryana (supra), we find no merit in the present petition.
20. However, we clarify that the observations made in the present judgment being for limited purpose of deciding question involved in the Petition of the complaint impugned disclosing or otherwise the offence for which the crime was registered, nothing therein should be construed as an opinion expressed regarding the merits or truthfulness of the recitals in said complaint.
21. In the net result, the petition fails and stands dismissed. Rule stands discharged accordingly. Needless to add that in view of disposal of the Petition, the applications, if any, also stands disposed of.