Meera Mishra AndOrs. vs State Of Uttar Pradesh And Anr.

Vikas Kunvar Srivastav, J

The application in hand is moved under section 482 of Criminal procedure code, 1973 by learned counsel Sri Satyendra Kumar Maurya on behalf of the accused applicant involved in Case Crime No.986/2017 under Sections 406 and 506 IPC, Police Station - Kotwali, District Sitapur. The applicant seeks following reliefs-

"WHEREFORE, it is most respectfully prayed that this Hon'ble court may kindly be pleased to exercise the power U/S 482 Cr.P.C. to quash the charge sheet dt. 1.11.2017 and summoning order dt. 18.1.2018 in crl. Case no.366/2018, crime no.986/17 U/S 406, 506 IPC P.S. Kotwali, District Sitapur in re; State Vs. Meera Mishra and others in the interest of justice, pending in the court of ld. Chief Judicial Magistrate-Sitapur."

According to the prosecution story against the accused applicant, he has issued a receipt, on receiving from the informant of the case worth Rs.6,57,315/- as part of sale consideration for the proposed transfer of the house No.A-113, Awas vikas Colony. He assured to execute sale deed in favour of informant within three months but neither the said promise made by the applicant accused was fulfilled nor the money paid on the assurance of sale was repaid.

The grounds upon which the relief to quash the charge-sheet as pleaded in the application are:-

(i) false implication on the basis of fabricated facts.

(ii) that the applicant no.1 made request to the opposite party no.2 to get execution of sale deed but the informant made request some more time to pay the rest of the sale consideration.

(iii) that on the request of informant applicant no.1 given her time and agreement was renewed on 21.4.2017 in between the parties.

On the aforesaid ground the quashment of charge-sheet is sought emphasizing upon there being a dispute of civil nature therefore, criminal prosecution does not arise.

The applicant accused who is slapped with offence under Section 406 and 506 IPC. Section 406 provides punishment for criminal breach of trust which is quoted hereunder:-

"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.

Criminal breach of trust is defined under Section 405 IPC which is also for easy reference cited hereunder:-

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".

[Explanation 2[1].-A person, being an employer 3[of an estab-lishment 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.] 4[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.]

By virtue of an agreement which the applicant accused has admitted and acknowledged in this application by issuing a receipt made annexure in the application, the payment by the informant as part payment of sale consideration for purchase of house which the applicant accused proposed to sale. As such the applicant accused was entrusted with the aforesaid amount under assurance of executing a sale deed of house No. A-113, Awas vikas Colony.

Subsequent to the failure on the part of accused-applicant to execute the sale deed of his house in favour of the informant. On failure to comply with the obligation under his assurance he had to repay the money entrusted with him by the informant. The moment he denied to repay the said amount on his failure he had misappropriated the amount in his benefit and the offence under Section 406 I.P.C. stands constituted because the allegation if taken together are fulfilling the ingredient rendered for consideration of offence therein.

Section 506 provides punishment for the offence of criminal intimidation, which thus reads as under:-

Punishment for criminal intimidation.-Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.-And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison-ment of either description for a term which may extend to seven years, or with fine, or with both."

The criminal intimidation is defined in Section 503 IPC which is quoted hereunder:-

Criminal intimidation.-Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intim-idation. Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.

In the present case the allegations are when on failure of execution of sale deed by the applicant accused the informant requests to repay the money paid to him on account of payment of sale consideration or to execute, he denied to do anything and threatened for life and limb of the informant. As such from the very allegations made in the FIR they fulfill the ingredients under Section 503 of the criminal intimidation for which Section 506 IPC is slapped upon the accused applicants.

So far as the argument as to the dispute being of civil nature is concerned, it is different aspect of the fact wherein execution of sale deed is denied giving cause of action on the breach of promise,but the same would civilly actionable only when the promise is under a legally enforceable agreement. In the present matter the intention seems not to execute the sale deed but to obtain money, as the applicant did not enter into a lawful written agreement for sale but given oral assurance while receiving money by issuing receipt of payment, he induced the informant of the case to believe the proposal of execution of sale deed. This is the aspect in the case which makes the transaction and conduct criminal in nature. Any finding as to the truthness or falsity of allegation in the FIR with this regard depends upon the legally adduced evidence in trial. On having been tried the allegation if proved for the purpose of conviction but so far as the FIR having allegations to the above effect are fulfiling the ingredients of offence for which the accused applicant are slapped. The charge-sheet along with the material collected by the police prima facie supporting the allegation in the FIR cannot be held a result of abuse of process or suffering from any illegality wherein the interference of the court for quashing may be exercised using extraordinary power under Section 482 Cr.P.C. The court has not to embark on evidence at this stage to make any finding as to the truthness or falsity.

In R. Kalyani Vs. Janak C. Mehta and Ors. reported in (2009) 1 SCC 516, Hon'ble Supreme Court has held in its para-9 as under:-

"9. 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."

Hon'ble Apex court in the case of Mahesh Chaudhary Vs. State of Rajasthan & Anr. reported in (2009) 4 SCC 439 in its para nos.14 held as under:-

"It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused."

As such the prosecution is found to be legitimate. Process issued wherein for appearance are defied by the accused applicants.

The accused applicant instead for putting appearance before the court having participation to get adjudicated the case on the basis of evidence adduced by them in their defence have come into the High Court invoking its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet, this is nothing but an effort to stifle the lower court's proceeding.

The scope of interference and exercise the extraordinary power of court under Section 482 Cr.P.C. is explained in para 23 and 24 of judgment of Hon'ble Apex Court in the case of Inder Mohan Goswami Vs. State of U.P. reported in 2012 SCC 1, which reads as under:-

"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power 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 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such 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."

Hon'ble Apex Court has further in State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335 illustrated certain circumstances, wherein such power can be used and now repeatedly the said illustrations are relied in various judgment of Hon'ble Apex Court and those are treated as guidelines and reads as under:-

"102.(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 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 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;

(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."

On the basis of above discussion from the material placed on record of the case no prima facie case is made out for relief of quashing the charge-sheet and summoning order against the accused, hence, application is liable to be rejected.

Accordingly, application is dismissed as rejected.