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Judgment
Dr. Ajoy Kumar Mukherjee, J.
The present Revisional Application has been preferred by the petitioner being aggrieved by the impugned proceeding being Cyber Crime P.S. Case no. 23 of 2024 under section 316(2), 318(4) of the BNS, presently pending before learned ACJM, Barrackpore.
Mr. Moyukh Mukherjee, learned counsel for the petitioner while submitting background of the cases mentioned that the petitioner and the Opposite Party (in short OP) no.2 had entered into a lease agreement in the year 2017 to reside at a flat being no. 6109(4) in Delhi and said Lease was subsequently renewed from time to time. By virtue of living together and sharing a flat, the expenses incurred by the parties were also divided amongst the two. If any expenses were borne by one of them, was used to be repaid by the other. OP no.2 used to live luxurious life style and for the same they have travelled together at many places and had stayed at highly luxurious hotels, where the expenses were usually borne by the petitioner.
The OP no.2 /complainant got married on 11.08.2024, when the petitioner was invited and had also participated in the said wedding ceremony. In fact the petitioner were involved in making all the arrangements of the weeding of the OP No.2. However at the reception party, the petitioner had to encounter a hot altercation with the wife of the OP No.2. Just after nine days from the said reception party, the OP no.2 instituted the instant complain against the petitioner alleging that some impugned transactions have been made by the petitioner beyond the knowledge of the OP no.2 and he came to know about such transaction only after checking his bank account on 17.08.2024. It is further alleged that when the OP no.2 informed the petitioner about such transaction, the petitioner had agreed that such transactions have been made by him but at present the petitioner is reluctant in giving the money back to the OP no.2 by making different excuses. Based on such complain the aforesaid criminal proceeding has been initiated.
Being aggrieved by the said proceeding learned counsel for the petitioners Mr. Mukherjee submits that from a bare perusal of the allegations levelled in the FIR, , it is evident that the instant proceeding as initiated against the present petitioner is absolutely baseless and displayed a clear misuse of the provisions of criminal law, specially when it fails to disclose any commission of offence by the petitioner. There was a long standing personal relationship between the petitioner and the OP no.2. The allegations levelled in the FIR even if accepted in its entirety, does not disclose the essential ingredients of either the offence of cheating or criminal breach of trust. Rather the allegations reveal financial transaction between two persons who admittedly shared a domestic relationship and continuously exchanged money during the subsistence of such relationship. Therefore, even if there is any dispute, it is purely civil or contractual dispute and cannot be permitted to be converted into a criminal prosecution with the sole intention of exerting pressure upon the OP to recover money and he stressed that criminal law is intended to punish criminal conduct and not serve as a mechanism for recovery of alleged dues.
Mr. Mukherjee further argued that the very foundation of the prosecution rendered doubtful by the extraordinary delay in lodging the same. The allegations relate to transaction allegedly undertaken in the year 2017, whereas the FIR came to be registered only on 22.08.2024 after an unexplained lapse of almost seven years. The OP no.2 nowhere explained it satisfactorily as to why he remained completely silent for nearly 7 years, if indeed the transaction had been carried out fraudulently and without his consent. Such prolonged silence is wholly inconsistent with the conduct expected from a person who claims to have been cheated of substantial amount of money. He further argued that had the allegations been genuine, the natural and ordinary human conduct would have been to immediately approach either to the police authorities or the concerned banking institutions.
He further argued that though an inordinate delay in lodging the FIR is involved in the instant proceeding, but the police started investigation even without making preliminary enquiry. The FIR itself shows that investigation started, on the very same day i.e. on 22.8.2024, when the information was received by the police. Relying upon the judgment of Lalita Kumari Vs. Government of UP reported in 2014 (2) SCC 1, Mr. Mukherjee contended that in the present proceeding, the investigating agency has started the investigation flouting the mandatory law declared by the Apex Court in Lalita Kumari's Case (supra). The investigating agency did not examine the reasons for the delay nor made any enquiry to know the truthfulness of the allegations. Such mechanical registration of the FIR demonstrates total non-application of mind and renders the very initiation of criminal proceeding legally vulnerable. In the present case there exists no material indicating any urgency which justifies dispensing with the preliminary enquiry and therefore the failure of the investigating agency to follow the binding precedents, vitiates the very initiation of the criminal proceeding.
Mr. Mukherjee further argued that in order to attract offence under section 318 (4) BNS, the existence of dishonest intention at the very commencement of the transaction is the soul of the offence. It is well settled that every breach of contract or monetary dispute does not amount to cheating. Criminal liability arises only where fraudulent intention existed from the very beginning. In the present case there is absolutely no allegation demonstrating that the petitioner induced the OP no.2 by making any false representation at the inception of the relationship or at the commencement of the financial transactions. The FIR merely alleges that certain transfers were made from the account of OP No. 2 which even if taken as correct does not satisfy the statutory ingredients of deception or dishonest inducement contemplated under section 318(4) BNS.
On the contrary the admitted contract between the parties completely destroys the allegation of cheating. The financial transaction between the parties were regular, reciprocal and voluntary, which involves household expenses, travel expenses and other personal expenditures, which were routinely borne by the petitioner. However, the petitioner despite maintaining his innocence, transferred Rs. 50 lakh to the OP no.2 on 17.07.2024 and several other payments exceeding Rs. 2 lakh were made through online transfers as well as cash. Such conduct on the part of the petitioner is also wholly inconsistent with the conduct of a person, who allegedly intended to cheat the complainant from the inception.
He further argued that the petitioner has also been charged with the offence of criminal breach of trust under section 316(2) of the BNS. The indispensable ingredient of criminal breach of trust is enstrustment. Unless the prosecution establishes that property was entrusted to the accused in a fiduciary capacity and the same was thereafter dishonestly misappropriated, the offence cannot stand. Here the FIR is conspicuously silent regarding any entrustment. There is no allegation that the OP no.2 entrusted any money or property to the petitioner under any legal obligation or fiduciary arrangement. Admittedly about 20 to 30 banking transactions were allegedly carried out from the complainants own account and it is beyond comprehension that such a large number of banking transactions could have been repeatedly executed without the knowledge of the account holder. Such allegation that approximately thirty separate transactions took place without the complainants knowledge is also contrary to ordinary banking practice and therefore the allegation is inherently improbable. It is also argued in this context that the OP no.2 never informed his bank that unauthorized transfers had been effected. He never disputed receipt of OTPs, never sought freezing of account, never requested reversal of transactions and never invoked the banking fraud mechanism. The allegations have been raised only after the relationship between the parties got deteriorated and with the ulterior object of recovering money through criminal prosecution, rather than pursuing any general grievance. He further argued that the allegations under section 316(2) and 318(4) of the BNS are mutually exclusive and cannot be invoked simultaneously on the same set of facts. In this context he relied upon the judgement of Delhi Race Club 1940 Ltd. Vs. State of U.P., reported in (2024) 10 SCC 690, where Supreme Court held that the offences of cheating and criminal breach of trust are independent, distinct to each other and cannot ordinarily co-exist on the same factual foundation.
Therefore, according to Mr. Mukherjee the conduct of the investigating agency throughout the present proceeding unmistakeably demonstrates that the criminal process has been utilized not for investigation of any cognizable offence but as an instrument for recovery of money on behalf of OP no.2. The investigating agency compelled the petitioner to make payment of an enormous sum of Rs. 50 lakh to the OP No.2 and the manner in which such payment was extracted leaves no manner of doubt that the object of notice under section 35 (3) of BNSS was to negotiate settlement and to compel repayment which the supreme Court has repeatedly deprecated and directed not to convert courts into recovery agents for private parties. Therefore it is a fit case where the proceeding is liable to be quashed involving this courts inherent jurisdiction under section 528 of the BNSS.
Per Contra Mr. Dey learned counsel appearing on behalf of the OP no.2. submits that the OP no.2 came to learn regarding the impugned transactions on 17.08.2024, which occurred on several occasions since 2022. When the petitioner was informed about such illegal transactions made by him, he agreed about such transaction made by him but right now he is reluctant to return those amount by making different excuses. It is settled law that unauthorized online transfer or siphoning of money by exploiting physical proximity constitutes a cyber-crime under the Information Technology Act, 2000.
The O.P no.2's specific case is that during the said illegal transaction he never obtained any bank message or one time password (in short OTP). The petitioner was working for gain under the Google and therefore if any OTP or message was sent by bank that were erased applying technical mode. The father of the petitioner during investigation had returned Rs. 50 lakh only, which tantamounts to admission of the offence committed by the petitioner under The Information Technology act 2000. Furthermore the mens rea is also established by the intentional abuse of trust. The physical act of surreptitiously viewing a pin or accessing a sleeping/distracted roommate's, device to conduct an online transfer satisfies the threshold of unauthorized access.
He further pointed out that one time settlement for repayment of a portion of money is no ground to quash the criminal proceedings when the economic offence affects public interest. Therefore, without investigation the proceeding is not liable to be quashed, invoking this courts inherent jurisdiction.
Learned counsel appearing on behalf of the states submits that during investigation investigating officer recorded statement of the complainant under section 180 of BNSS and also collected documents from the complainant including banking transaction details for all five bank accounts of the complaint and after analysing reply as provided by concerned banks it could be learnt that huge amount of money has been debited and subsequently credited to the account of the petitioner. He further submitted that in course of investigation the petitioner who is an FIR named accused did not appear physically at the PS but expressed his willingness to join the investigation through video conferencing.
During investigation notice was sent to the beneficiary account holder to which the FIR name accused/petitioner had allegedly siphoned a substantial amount of money fraudulently after withdrawing the same from complainant's bank account but no fruitful response has been received to the said notice till date.
It is further submitted by the State that during the course of investigation, it revealed that the transaction IP addresses as provided by ICICI Bank and Axis bank in respect of the complainants bank account, from which the fraudulent transactions were carried out were consistently linked to a common mobile number. The said IP addresses were found to have been allocated by the concerned ISPS namely TATA Play Braodband Services, Bharti Airtel to the aforesaid Mobile number. Further verification revealed that the said mobile number is registered in the name of the FIR named accused/petitioner, which establishes that the accused had access to and control over the digital resources used for executing the fraudulent transactions.
Mr. Das learned counsel appearing on behalf of the State further submits that the evidences collected during investigation prima facie indicates that the petitioner/accused initiated the fraudulent transactions from the victim's bank account and appears to be the main perpetrator behind the commission of the offence.
He further submits that the petitioner has a criminal antecedent and it reveals that a case being crime no.1936 of 2025 of cyber-crime police station, Cyberabad District, has been registered against the petitioner along with his father and other co –accused for offences punishable under various provision of BNS and section 66-D of the Information Technology Act, involving a fraud amount of Rs. 70,87,488/-. Therefore Mr. Das submits that this is not a fit case where the proceeding is liable to be quashed invoking this court's jurisdiction under section 528 of the BNS.
I have considered submissions made on behalf of all the parties.
During investigation the police has collected certain incriminating materials against the petitioners and the investigation is still in progress. The investigating agency has sent a status report about progress of Investigation before this court today, wherein it has been stated specifically that in course of investigation the petitioner/accused did not appear physically at the Police Station and thereafter he joined through virtual mode but thereby he complied with the notice, issued under section 35(3) BNSS partly. During examination, the accused failed to furnish any satisfactory explanation in respect of alleged misappropriation of the said amount of money, without the knowledge and consent of the complainant.
The relevant portion of the said report may be reproduced below:-
"In course of investigation, on the basis of evidence collected so far, including bank transaction records, digital evidence, and statements recorded under law, and in view of the criminal antecedents of the accused, it is revealed that the FIR-named accused, namely Shashank Singh Gwal, is prima facie involved in a systematic act of cheating and criminal breach of trust. The accused, by dishonestly gaining the confidence of the complainant, misused such trust and fraudulently misappropriated a substantial amount of money without the knowledge or consent of the complainant. The investigation further reveals that the defrauded amount was routed through multiple bank accounts of the accused as well as his associates, indicating a deliberate and pre-planned modus operandi to conceal the trail of funds. The amounts were subsequently utilized for personal gains, including expenditure on luxury items and maintenance of a lavish lifestyle. Such conduct further established the dishonest intention of the accused from the very inception of the offence. It is also pertinent to mention that despite partial repayment, a substantial amount of Rs. 58,12,000/- still remains unpaid, and the accused has failed to make good the loss caused to the complainant even after lapse of a considerable period since registration of the case, thereby aggravating the gravity of the offence and causing continuing financial hardship and mental agony to the complainant. Considering the nature and gravity of the offence, the manner in which it has been committed, the existence of criminal antecedents, and the conduct of the accused in not fully cooperating with the investigation, there exists a reasonable apprehension that the accused may tamper with evidence, influence witnesses, or evade the process of law if granted or continued with the privilege of anticipatory bail. It is , therefore, most humbly prayed before the Hon'ble Court that the anticipatory bail granted to the said accused may kindly be cancelled and/or its benefit may not be extended further in the interest of fair and proper investigation, as the continued protection is hampering the effective investigation of the case and custodial interrogation of the accused has become necessary for the purpose of unearthing the complete truth."
The legal position is well settled as to the test to be applied by the Court when a prosecution at the investigation stage is asked to be quashed. If the in uncontroverted allegation made in the FIR and the materials collected during investigation do not prima facie constitute cognizable offence, if it is expedient and in the interest of justice not to permit a prosecution to continue since the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may quash the proceeding, even though it may be at a preliminary stage. Therefore when a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out, even if the allegations are accepted in toto.
In RP Kapoor Vs. State of Punjab reported in AIR 1960 SC 866, Supreme Court summarized some categories of cases where inherent power can be exercised to quashed the proceeding. Relevant portion of Paragraph 6 of the judgments reads as follows:-
"……It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561- A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings and that is the effect of the judicial decisions on the point."
Therefore, the ratio laid down in the said Judgment interalia is that while the court will deal with the cases with the averment that the allegations do not constitute cognizable offence, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the acquisition made and a case where there is legal evidence which on appreciation may or may not support the acquisitions. In the present case from the written FIR and also from the submissions made on behalf of the opposite parties based on materials collected during investigation, it cannot be said that there is no legal evidence or the evidence which has been collected so far is inconsistent with the acquisition made. Therefore, at this stage it is not the duty of the High Court to embark upon an enquiry whether the materials collected so far during investigation is reliable or not or whether on reasonable appreciation of it, acquisition would not be sustained to come to a conclusion that the materials does not support the acquisition.
The scope of exercise of power under section 482 of the Code and the categories of cases where the High Court may exercise its powers under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice has been categorized in a greater details in State of Haryana Vs. Bhajanlal reported in 1992 supp (1) SCC 335, Para 102 of which reads as follows:-
102.In the backdrop of 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 extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we have given 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 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.
In the present case, it is the specific allegation of the prosecution that the accused petitioner had already obtained anticipatory bail and he did not appear physically before the investigating agency, which according to them hampering the investigation of the case to unearth the truth, in the premise of a prima facie case that the accused by dishonestly gaining the confidence of the complainant, misused such trust and fraudulently misappropriated a substantial amount of money without the knowledge or consent of the complainant The investigation further revealed that the alleged defrauded amount was rooted to multiple bank accounts of the accused as well as his associates, indicating a deliberate and pre planned modus operandi to conceal the trail of funds. It is also the case of the prosecution that the amount was subsequently utilized for personal gains including expenditure on luxury items and maintenance of lavish life style.
The investigation has not yet been completed. While exercising jurisdiction under section 482 Cr.P.C. it is not permissible for the court to act as if it is a trial court. Therefore when the materials relied upon by one party are required to be proved/disproved, interference by the High Court to quash the said proceeding on the basis of an assumption that the transactions were mutually made, is uncalled for and therefore the submissions made on behalf of the petitioner that allegations are unacceptable, does not find any leg to stand. It is also well settled that the court should not kill a still born child and the appropriate prosecution should not be shut out at the threshold, if the allegations have some substance. In Binood Rghubanshi Vs. Ajoy Arora and Ors. reported in (2013) 10 SCC 581 it was held by the Apex Court in Para 30 as follows:-
30.It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a stillborn child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein. More so, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 CrPC. So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial court at a later stage.
Therefore, in view of the aforesaid facts and circumstances of the case and the settled proposition of law, I do not see any cogent reason to interfere with the impugned complaint or the investigation which is still continuing. The application is therefore devoid of any merit at this stage and is liable to be dismissed.
In view of above CRR 4142 of 2024 is dismissed.
Connected Applications also stand disposed of.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.