Ajit Bharihoke, J.@mdashG.K. Sahwney, the Petitioner herein, vide this petition u/s 482 Code of Criminal Procedure seeks quashing of criminal complaint No. 385/2001 titled "Jai Prasad Jain v. Rajasthan Ball Bearing Ltd. and Ors." pending in the court of ACMM, Patiala House, New Delhi qua him.
2. Briefly put, facts relevant for the disposal of this petition are that on 4.4.1998, Respondent No. 2 filed a complaint u/s 138 of the Negotiable Instruments Act (N.I. Act) against M/s Rajasthan Ball Bearing Ltd. and Ors. including the Petitioner. It was alleged in the complaint that pursuant to an advertisement issued by M/s Rajasthan Ball Bearing Ltd. seeking fixed deposit, Respondent complainant opened three fixed deposit accounts which were due to mature with 15% interest on 30th October, 1997, 25th January, 1998 and 25th January, 1998 respectively. On maturity of those fixed deposit receipts, aforesaid company issued 11 cheques in favour of the Respondent/complainant to meet the liability of the principal deposit and interest. Those cheques, on presentation, were dishonoured with the remarks "funds insufficient". This led to issue of demand notice u/s 138 Negotiable Instruments Act to the company as well as its Director Sandeep Sawhney and the Petitioner. They, however, failed to make payment of the amount of cheques within the requisite period of 15 days from the date of receipt of demand notice. This led to filing of complaint u/s 138 Negotiable Instruments Act against the company as well as two others, including the Petitioner.
3. While aforesaid complaint u/s 138 Negotiable Instruments Act was pending, Respondent filed the subject complaint u/s 190/403/420 Indian Penal Code against the aforesaid company and two others, including the Petitioner on the same set of facts. Learned M.M. conducted preliminary enquiry and on consideration of the second complaint and preliminary evidence led in support of the complaint, found that a prima facie case of commission of offences u/s 420/406/409/34 Indian Penal Code was disclosed. He, accordingly, summoned the accused persons named in the complaint, including the Petitioner.
4. Mr. Jayant K. Sud, Advocate appearing for the Petitioner has submitted that the impugned summoning order dated 26.2.2001 is bad in law for the reason that the allegations in the complaint as also the preliminary evidence adduced in support of the complaint does not disclose commission of the offence u/s 420/406/409 Indian Penal Code by the Petitioner. It is further contended that the complaint filed by Respondent No. 2 is an abuse of process of law and it has been filed with mala fide intention to harass the Petitioner. Expanding on the argument, learned Counsel for the Petitioner submits that admittedly a complaint u/s 138 Negotiable Instruments Act was filed against the Petitioner by Respondent No. 2 in the year 1998. On the same set of facts, two years later, the Petitioner had filed the instant complaint without giving any explanation as to what prevented complainant Respondent No. 2 from including the offence u/s 420/406/409 Indian Penal Code. In support of this contention, learned Counsel for the Petitioner has relied upon the judgment of Supreme Court in the matter of
5. Learned Counsel for the Respondent No. 2, on the contrary, has argued in support of the impugned order. It is contended that learned Metropolitan Magistrate has rightly appreciated the allegations in the complaint and the preliminary evidence and arrived at a conclusion that a prima facie offence u/s 420/406/409/34 Indian Penal Code is disclosed against the Petitioners. It is further contended that cause of action for filing of a complaint u/s 138 Negotiable Instruments Act is distinct from the cause of action in filing the complaint u/s 420/406/409/34 Indian Penal Code. Therefore, there is no bar under law to file two different complaints for distinct offences on the same set of facts. Thus, it is urged that the petition be dismissed.
6. I have considered the rival contentions and perused the record. The Petitioner, vide impugned summoning order has been called upon by the Magistrate to undergo trial for the offences punishable u/s 420/406/409 Indian Penal Code. In order to constitute the offence u/s 420 Indian Penal Code, following ingredients are required to be satisfied:
(1) Deception of any person;
(2) Fraudulently or dishonestly inducing that person;
(i) To deliver any property to any person or
(ii) to consent that any person shall retain any property or intentional inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
7. From the reading of above, it is apparent that dishonest intention is an essential ingredient to constitute an offence of cheating. In the instant case, though it is alleged that the Respondent deposited certain amounts with the accused company, yet there is No. specific allegation that the aforesaid company or any of the other accused made any fraudulent or dishonest statement so as to induce the Respondent to deposit his money with the company. Thus, essential ingredient of cheating i.e. dishonest intention is lacking in this case. As such, learned M.M. was wrong in summoning the Petitioner for the offence punishable u/s 420 Indian Penal Code.
8. The other offences for which the Petitioner has been summoned are offences under Sections 406 Indian Penal Code and 409 Indian Penal Code.
9. Section 406 Indian Penal Code provides punishment for the offence of criminal breach of trust and Section 409 Indian Penal Code is aggravated form of the offence of criminal breach of trust and it comes into play when the offence is committed by a banker, merchant, factor, broker, attorney or an agent. In order to constitute the offence either u/s 406 Indian Penal Code or Section 409 Indian Penal Code, it is essential that the act so committed by the accused must fall within the parameters of the definition of the offence of criminal breach of trust. In order to constitute the offence of criminal breach of trust, following ingredients must exist:
1. There should be an entrustment by one person to another of the property or of any dominion over property;
2 Such entrustment must be in trust;
3. There must have been misappropriation or conversion to his own use by the person who receives the property in trust;
4. Such conversion or retention of property must be against or in violation of any direction of law prescribing the mode in which such a trust is to be discharged or any other local contract made touching the discharge of such trust.
10. The subject complaint has been filed on the allegations that Respondent complainant, pursuant to the invitation of M/s Rajasthan Ball bearing Ltd. had deposited Rs. 8 lacs with the company for fixed term at 15% interest and after maturity, the cheques given for payment of the fixed deposit amount and interest were dishonoured. In my opinion, on the basis of these allegations, the offence of criminal breach of trust is not made out. The deposits made by the Respondent with the company were in the nature of a civil contract and those cannot be termed as entrustment of property to the company because the said amount was deposited with the company on an understanding that the company would utilize the money for its own purpose. Therefore, the basic ingredient of misappropriation of the property is lacking in this case. Thus, in my view, No. case u/s 406/409 Indian Penal Code is disclosed and the learned M.M. has committed an error in summoning the accused for the said offences.
11. Otherwise also, admittedly, prior to the filing of the complaint u/s 190/403/420 Indian Penal Code against M/s Rajasthan Ball Bearing Ltd. and Ors. including the Petitioner, the Respondent complainant had already instituted a complaint u/s 138 Negotiable Instruments Act on the same set of allegations. Respondent complainant has failed to give any explanation either in his complaint u/s 190/403/420 Indian Penal Code or in his preliminary evidence as to why he did not include offence u/s 190/403/420 Indian Penal Code which are subject-matter of second complaint in his earlier complaint u/s 138 Negotiable Instruments Act. This circumstance leads to an inescapable conclusion that the second complaint has been filed with mala fide intention to harass the Petitioner by filing multiple criminal proceedings against him on the basis of cause of action arising from same set of facts. This conduct on the part of the Respondent certainly is an abuse of process of law justifying the interference u/s 482 Code of Criminal Procedure to quash the proceedings of the second complaint. In my aforesaid view, I am supported by the judgment of Supreme Court in the matter of
12. In view of the above, I find it difficult to sustain the impugned summoning order qua the Petitioner. Summoning order dated 26.02.2001 is, therefore, set aside and the complaint case No. 385/2001 titled "Jai Prasad Jain v. Rajasthan Ball Bearing Ltd. and Ors." qua the Petitioner is quashed.
13. Petition is disposed of.
