Tag Archives: Quash

Second #FAKE #498a filed on same Fake grounds at a different police station! #Quashed !! Anup Agrawal vs The State Of #Madhya #Pradesh on 16 #April, #2018

Notes

Soon after marriage wife demands LAKHS and LAKHS of money from her newly wed husband !! The Husband is unable to provide the same !! So she refuses to join matrimonial home. Wife then goes on to file #FAKE #498a at #Indore PS. The Indore police arrange for counseling sessions and the woman agrees that there were “differences” between the couple (NOT dowry cruelty !! ) and they agree to part ways !

Still the woman files a SECOND fake 498a from a different Police station. Husband tries to impress on the second PS that the case in the same grounds the first cace (which was closed) . Still the second PD file a charge sheet !

So the husband and co run to MH HC and seek quash. https://twitter.com/ATMwithDick

The Hon MP HC sees the ABUSE of process of law and quashes the entire 498a case !!


Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018

Madhya Pradesh High Court

Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018

M.Cr.C.No10858/2017 (Anup Agrawal & Ors. Vs. State of M.P. & Ors..)

High Court of Madhya Pradesh: Bench at Indore

Single Bench: Hon’ble Shri Justice S.K. Awasthi

M.Cr.C. No. 10858/2017

Anup Agrawal & Ors.

vs.

State of Madhya Pradesh & Ors.


Shri Anup Agrawal, present in person.

Mrs. Mamta Shandilya, learned Govt. Advocate for the respondent No.1/State.

Shri Vinod Kuma Bhavsar, learned counsel for the respondent No.2/complainant.


ORDER

(Passed on April 2018 )

  1. The applicants filed instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘The code’) seeking quashment of FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR. https://twitter.com/ATMwithDick
  2. 2. The necessary facts leading to filing of the instant petition are that the marriage of applicant No.1-Anup Agrawal was solemnized with respondent No.2-Trupti Agrawal on 24/04/2014 as per Hindu rituals and customs. Respondent No. 2 made a complaint against the applicants alleging that in the marriage her parents had given ornaments, household articles and cash of Rs.3.50 Lacs to the applicants. However, after the marriage, all the accused persons started to harass the respondent No. 2 alleging that her parents had given nothing in the marriage and they demanded money from her. At the time of Diwali festival in the year 2014 the applicants beat her and she was thrown out of her matrimonial home. On the basis of aforesaid allegations an FIR for commission of offence under Sections 498(A) and 323/34 was registered against the applicants at Police-Station Lasudiya and after completion of investigation charge-sheet was filed. In the month of June 2015, the applicant was transferred to Ahemdabad but the respondent No.2 refuse to accompanied him, since she did not want to give her job in the ICICI Bank, Indore. Applicant No.1 tried to relocate back to Indore. Respondent No.2 informed the applicant No.1-in the mid-August 2014 first time that she owed a debt liability of approximately Rs.25 Lacs against Indore Development Authority flat situated in Anandvan (Highrise), Scheme No. 140 and she is paying an EMI of approximately Rs.25,000/- towards the said loan from July 2015. On 01/12/2015, respondent No.2 asked the applicant No.1 to help her for Rs. 6,54,080/- to enable her to get possession of the aforesaid flat, however, due to a shortage of funds the applicant No.1 was unable to help the respondent No.2 to pay the same and because of this respondent No.2 got furious with the applicant No.1 and refused to come back to the matrimonial home. Applicant No.1 applied for new job and he got his new assignment at Pune but respondent No.2 refused to come to Pune saying that she cannot stay in relationship with a person, who cannot arrange money for her when she needs it. On 20/12/2016, a family meeting was arranged in Neemuch to resolve the said issued. But respondent No.2 did not turn up on the aforesaid date. Thereafter, applicants made several attempts for reconciliation but they have not received any response from respondent No.2. On 27/09/2016, at the house of family friend of the applicant a family meeting was arranged, in which respondent No.2 alongwith her father and other relatives were present in an extremely aggressive manner and threatened that they would implicate the applicants in false case under the Domestic Violence and Dowry Prohibition Act in order to harass and humiliate the applicants and tarnish their reputation. They abused applicant Nos. 2 & 4 and attempted to assault the applicant No.1. In this regard applicant No.4 lodged a complaint against the said intimidation and threatening in the Police-Station at Neemuch. https://twitter.com/ATMwithDick
  3. 3. On 01/12/2016, respondent No.2 filed a complaint against the applicants at the Mahila Thana, Indore alleging that the she was treated with cruelty by the applicants in order to extract the dowry from her parents. There upon the applicants were summoned by the Mahila Thana, Indore. Whereupon the police recorded the statement of the applicants and respondent No.2 . During counseling proceedings and respondent No.2 could not substantiate her case against the applicants and then she sought some time to think and to provide evidence of her allegations against the applicants. On 18/12/2016, another counseling session was conducted, in which they came to the conclusion that the differences have arisen between them and respondent No.2 was agreed to file a petition for dissolution of the marriage by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955 with the condition that she wanted back of her belongings that may be lying at the house of applicant No.1. On 18/12/2016, the respondent No.2 collected her remaining belongings under the supervision of the SHO, Mahila Thana from their rented housed situated at Nipaniya, Indore and the Police-Station Mahila Thana filed a closure report before the Court of Judicial Magistrate First Class.
  4. 4. On 06/01/2017, the respondent No.2 again made a false complaint against the applicants with identical facts at Police-Station-Lasudiya, Indore, where FIR bearing Crime No. 14/2017 got registered for the offence under Sections 498(A) and 323/34 of the IPC against the applicants. Then the applicant No.1 tried in every possible manner to bring to the notice of the Police-Station-Lasudiya, Indore that the said FIR had been registered on the basis of a false and malicious complaint and that the said issues between the parties stood resolved, with the written consent of the respondent No.2, during the previous proceedings in the Mahila Thana, Indore, in December 2016. However, no heed was paid to the requests of the applicant No.1 and charge-sheet was filed against the applicants before the Court of Additional Chief Judicial Magistrate, Indore. The aforesaid charge-sheet is completely malafide and illegal and there is no ground for prosecution of the applicants are available. Only vague and omnibus allegations has been made in the complaint, which are totally false and concocted, therefore, FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR is liable to be quashed. https://twitter.com/ATMwithDick
  5. 5. Per contra learned counsel appearing on behalf of respondents has supported the criminal prosecution on the ground that prima facie the allegations levelled against the applicants are made out, therefore, the petition deserves to be dismissed.
  6. 6. I have considered the rival contentions raised on behalf of the parties and have perused the documents placed on record along with the present application.
  7. 7. The parameters on which the indulgence can be shown for exercising powers available under Section 482 of the Cr.P.C. with respect to matrimonial matters have been laid down by the Apex Court in the case of Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 in the following manner: ” 20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere M.Cr.C.No10858/2017 casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specifically if it happens soon after the wedding.
  8. 8. In another judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal Vs. Devi Polymers (P) Ltd; (2016) 6 SCC 310, wherein the Hon’ble Court referred to the earlier decision, observed in the following manner:- “15. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692, 1988 SCC (Cri) 234}, this Court observed as follows: (SCC p. 695, para 7) “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” https://twitter.com/ATMwithDick
  9. 9. However, it has been held by the Apex Court in the case of Satish Mehra Vs. State (NCT of Delhi) and anotdher, AIR 2013 SC 506 that the power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as the case may be, prima facie do not disclose a triable offence, there can be no reason as to why the accused should be made to suffer the agony of legal proceedings. Thus, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of charge against the accused.
  10. 10. It has been held in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604, that where a criminal proceedings is manifestly attended with male 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, extraordinary or inherrent powers reserved to the High Court under Section 482 of the Code of Criminal Procedure can be exercised to quash the first information report.
  11. 11. In the context of the law laid down by the Apex Court , the plain reading of the FIR lodged by the respondent No.2, goes to show that the allegations relating to commission of offence punishable under Section 498(A) of the IPC are omnibus and do not refer to any specific act of the applicants. Although she has made an allegation that on 27/04/2014, when they had gone to Shimla (H.P.) for their honeymoon, the applicant No.1-taunted her alleging that her father has not given anything in the dowry and on Diwali festival of the year 2014, the applicants beat her with respect to demand of dowry, but she has not made any complaint regarding these incidents till 2016, which clearly indicates that all these allegations are vague and false. https://twitter.com/ATMwithDick
  12. 12. On 18/12/2016, at Mahila Thana Indore respondent No.2 made the following statement, which reads as under:- ” I, Trupti W/o Anup Agrawal, give this undertaking today i.e. on 18/12/2016 after counseling at Mahila Thana, Indore both of us husband and wife thinks that our thoughts does not match and it is not possible for us to live together any more. I wants to return my belongings from my husband and he is agreed to return the same. We will transfer our belongings with mutual understanding and we will file a divorce petition before the Court with mutual consent.”
  13. 13. The reproduced portion makes it clear that after counseling sessions both the parties came to the conclusion that the differences have arisen between them, therefore, they cannot be live together and respondent No.2 was agreed to file a petition for divorce by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955. In the context of the aforesaid understanding which has been arises between the parties, Mahila Thana Indore filed a closure report of the matter on 13/12/2016.
  14. 14. However, on 06/01/2017, the respondent lodged FIR at Police-Station Lasudiya for the same ground by suppressing the proceedings of Mahila Thana, Indore. In the FIR lodged at Police-Station-Lasudiya she alleged that even after 2-3 counseling sessions, the applicants persisted for their demand of dowry, which is absolutely contrary to the proceedings held at Mahila Thana, Indore. From the proceeding of Mahila Thana, Indore, it is transpired that after 2-3 days of the marriage respondent No.2 stayed with her husband-Anup Agrawal and sister-in-law-Alka Agrawal at Indore. Applicant No.1-Anup Agrawal due to his transfer left to Ahemdabad and then to Pune alone for the reasons that respondent No.2 was working at ICICIU Bank, Indore and she did not go with him. From the impugned FIR, it is clear that respondent No.2 is living separately since 23/11/2015 and she has not interested to live with her husband, therefore, it is difficult to believed that the applicants subjected her to cruelty on the pretext of demand of dowry. From the statement of the respondent No.2 given before the Mahila Thana, Indore, it is apparent that applicant Nos. 2 & 4 never lived with her, therefore, it cannot be accepted that they made any demand of dowry with the respondent No.2 and ill treated her with regard to the fulfillment of their demand. After counseling at Mahila Thana, Indore respondent No.2 and applicant No.1-Anup Agrawal, agreed that they will file a petition for divorce in writing and the parties were rided for court proceedings for the reason that the respondent No.2 does not want to live with applicant No.1 anymore. It is also pertinent to note that the respondent No.2 has already filed a divorce petition against applicant No.1 at family Court, Indore. While Mahila Thana, Indore has filed a closure report on the complaint filed by respondent No.2, then registration of FIR against the applicants for the same ground at Police-Station Lasudiya is nothing but a sheer abuse of the process of law.
  15. 15. Under these circumstances, the present application under Section 482 of the Cr.P.C. is allowed. Consequently, FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR are hereby quashed.

Certified copy as per rules.

(S.K. Awasthi) Judge

skt Digitally signed by Santosh Kumar Tiwari Date: 2018.04.17 10:30:08 +05’30’

Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018
— Read on indiankanoon.org/doc/193260203/

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HC quashes dowry case against NRI brothers. Indian courts can’t hear matter if demand made abroad

Screenshot - 2_17_2018 , 11_13_47 AM

HC quashes dowry case against NRI brothers

Says Indian courts can’t hear the matter if demand for money is made abroad

Source : THE TRIBUNE, PUNJAB

Posted at: Feb 15, 2018, 1:23 AM; last updated: Feb 15, 2018, 1:23 AM (IST)

Saurabh Malik

Tribune News Service

Chandigarh, February 14

The Punjab and Haryana High Court has ruled that dowry demand raised abroad can’t be tried by courts in India. The HC quashed a dowry harassment case against two NRI brothers, accused of instigating their brother to such a demand.

“In the instant case, even if there was instigation at the behest of the petitioners for demand of Rs 5 lakh from the complainant, the demand was raised outside the territorial jurisdiction of Bathinda. Therefore, the courts are not competent to entertain the matter,” Justice Jaishree Thakur ruled.

Justice Thakur said specific role, injury, dowry demand, entrustment of dowry articles, “istridhan” or its misappropriation was not attributed to the petitioners. “It is apparently clear that the FIR has been registered against the petitioners only to harass the family,” the judge added.

The ruling came on a bunch of two petitions filed against Punjab and other respondents by Rajesh Kumar Gupta and Rakesh Kumar Gupta through counsel RS Bajaj. They were seeking the quashing of an FIR dated July 14, 2012, registered at Kahnwan police station in Pathankot district under Sections 406, 498-A, 420 and 34 of the IPC. Directions were also sought for quashing all consequential proceedings. Bajaj told Justice Thakur’s Bench that the petitioners’ brother and the complainant got married in 2006. Subsequently, the parties resided together in England. No complaint was made during that time before the authorities there or during their annual visits to India. A perusal of the FIR also did not reveal that the petitioners attended the marriage ceremony; or that there was any entrustment of dowry articles.

After hearing Bajaj and going through the documents, Justice Thakur referred to the reply filed in the matter before observing that the petitioners were permanent residents of England and residing separately at a distance of 175 km from the complainant’s matrimonial home. “Even if, for the sake of argument, it is taken into account that the petitioners instigated their brother to raise a demand of Rs 5 lakh from the complainant, it was a demand that was raised in England, outside the territorial jurisdiction of the courts in Bathinda. Therefore, the offence, if any, had been committed in England,” Justice Thakur added.

Referring to a similar case before the Supreme Court, she said the parties were residing in Canada, but the FIR was registered in Jalandhar, alleging demand of dowry and misappropriation of dowry articles. “The proceedings were quashed, holding that the Jalandhar court would have no jurisdiction to entertain the matter,” she concluded.

 

 

Dowry case – FIR quashed !!

#Dowry #498a #Quash
Dowry harassment—When the allegations are shown to be non-specific and not of the degree of seriousness contemplated in law, and when the applicants accused are shown to be living separately coupled with attendant facts and aspects noticed and noted, the alleg mations become too bald to be sustained in law—FIR quashed. : 2017 (2) LRC 465(Guj)

Cash demand to meet crunch not dowry: Court

married woman hands

 

Rebecca Samervel | TNN | Updated: Jun 12, 2017, 02.23 AM IST

MUMBAI: In a recent order, a magistrate court while acquitting a man and his family members of dowry and cruelty charges, has observed that a demand for money on account of financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry.

While dismissing the wife’s case due to lack of evidence, a Borivli magistrate court held, “Even if the accused had demanded an amount of Rs 5 lakh for purchase of household articles, then that does not ipso facto amount to unlawful demand under IPC Section 498 A (husband or relative of husband of a woman subjecting her to cruelty).” The court also pointed out that the FIR was registered with the Dindoshi police two years after the alleged cruelty first started and the delay was not explained.

The court reasoned that the definition of dowry under Section 2 of the Dowry Prohibition Act meant any property or valuable security that should be given or agreed to be given either directly or indirectly, at or before or any time after the marriage and in connection with the marriage. “The evidence adduced by the prosecution does not, therefore, show that any demand for ‘dowry’ as defined in Section 2 of the Dowry Prohibition Act was made by the appellants (accused) as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure,” the court said. The woman lodged a complaint with the cops on March 24, 2015, against her husband and in-laws. The woman said that she married the accused on May 5, 2011 and began to live with her in-laws. She said that she was treated well for a month after the marriage. However, despite giving cash and ornaments at the time of the wedding, the accused started demanding a washing machine, cooler, colour TV and Rs five lakh cash for purchasing a flat. The woman alleged that she told her parents about the harassment. Subsequently her parents handed over Rs 50,000 to her in-laws. She further alleged that on October 12, 2012, her husband and in-laws abused her for the dowry.

The woman said that after she returned to her parents home in March 2013, the husband assured her family about her well-being and took her back home. She said that the assault however continued and on June 24, 2013, she was thrown out of the house.

The defence denied the allegations and said that the delay in lodging the FIR “robbed the genuineness of the prosecution’s case.” The defence submitted that the woman should have approached the cops as soon as she was made to leave her husband’s home and the delay showed that the case was dubious.

source
http://timesofindia.indiatimes.com/city/mumbai/cash-demand-to-meet-crunch-not-dowry-court/articleshow/59100365.cms

A #criminal #case, an #abuse of #process of #law 2 implicate accused after 12 years, quashed by SC !

Husbands often seek good quash cases. While it is nice to have 498a quash cases, it is also necessary to understand how various courts approach a quash and how sometimes one has to go up to Apex court to get results

Here is a good case that discusses the facts of the complaint and also various cornerstone cases, before quashing a criminal case, an abuse of the process of law
////////////////17. In view of the above discussion and facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by respondent No. 1, in respect of offences punishable under Sections 406, 409 and 420 IPC, also stands quashed.//////////

~~~~~~~~~~~~~~~~~~~~

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.953 OF 2015

(@ Special Leave Petition (Crl.) No. 330 of 2015)

Mr. Robert John D’Souza and others… Appellants

Versus

Mr. Stephen V. Gomes and another… Respondents

J U D G M E N T

Prafulla C. Pant, J.

  1. This appeal is directed against order dated 9.10.2014, passed by the High Court of Karnataka at Bangalore in Criminal Petition No. 658 of 2014 whereby said court has dismissed the petition, and declined to quash the Criminal Complaint case No. 357 of 2012, filed by respondent No. 1, against the appellants.
  2. Brief facts of the case are that a Society named – Mukka Welfare Society was constituted on 28.3.1970 for charitable work and social service, registered under Karnataka Societies Registration Act, 1970. Appellant No. 1, appellant No. 2 and appellant No. 3 were President, Secretary and Treasurer respectively, while appellant Nos. 4 to 7 were Directors of the Society. Other appellants are their relatives. A piece of land bearing S. No. 239/10 measuring 0.50 acres in Village Suratkal, Taluk Mangalore, was purchased by the Society vide registered sale deed dated 28.1.1978 from one Smt. Kaveri Hengsu. It is alleged by the complainant (respondent No. 1) that appellant Nos. 1 to 7, being members of the Executive and Directors of Mukka Welfare Society, misusing the position, held Board Meetings on 22.9.1995 and 13.10.1995 facilitating the sale of the above mentioned land in favour of their relatives (appellant Nos. 7 to 12). The sale deeds were executed on 16.2.1996. It is further stated that the purchasers (appellant Nos. 7 to 12), executed sale deeds in the same year in favour of the Directors of the Society. It is alleged by the complainant/respondent No.1 that the appellants have fraudulently usurped the property through the sale deeds mentioned above, and thereby committed cheating.

  3. The criminal complaint filed by respondent No. 1 was registered by the 1 st Additional Senior Civil Judge and Chief Judicial Magistrate, Mangalore, DK, who, after recording the statement of the complainant under Section 200 of the Code of Criminal Procedure, 1973 (for short “CrPC”), summoned the appellants vide order dated 13.4.2012 in respect of offences punishable under Sections 406, 409, 420 read with Section 34 of Indian Penal Code (IPC). The appellants filed Criminal Revision Petition No. 58 of 2012 before the Principal Sessions & District Judge of D.K. District at Mangalore, which was dismissed vide order dated 6.2.2013. Thereafter, the appellants filed a petition under Section 482 CrPC before the High Court and the same was also dismissed. Hence this appeal through special leave.

  4. We have heard learned counsel for the parties and perused the papers on record.

  5. The impugned orders passed by the High Court and the other authorities below are challenged before us mainly on the following grounds: – (i) Respondent No. 1/complainant is not a member of the “Mukka Welfare Society” nor is he in any manner connected with the affairs of the Society, as such he has no locus to file the criminal complaint. (ii) The sale deeds in question were executed in the year 1996, and the criminal complaint is filed malafide by respondent No. 1 after a period of fourteen years, in the year 2010, as such the courts below have erred in law in not taking note of said fact. (iii) The courts below have erred in law in not appreciating that the complaint in question was filed to get personal vendetta by respondent No. 1 against the Directors of the Society. (iv) The courts below further erred in not considering the fact that the complainant/respondent No. 1 had earlier filed a complaint, with same set of facts, before the Deputy Commissioner, Dakshin Kannada, Mangalore, and the same was sent to Police Station Suratkal for investigation, and the Circle Inspector, after investigation, did not find any offence to have been committed by the appellants, as the dispute was purely of civil in nature. (v) Ingredients of the offences punishable under Sections 406, 409 and 420 IPC are not made out. (vi) None of the transactions of sale in question is against any bye-law or clause of Memorandum of Association of the Society.

  6. In the counter affidavit filed on behalf of respondent No.1, it has been stated that the complainant came to know of the transactions of sale, only in the year 2009, whereafter he complained before the Deputy Commissioner, D.K., as such the issue raised as to delay in filing the complaint is unfounded. It is further stated that the Mukka Welfare Society receives donations from various institutions and general public. The allegation of personal vendetta, pleaded in the appeal by the appellants, has been denied in the counter affidavit. Lastly, defending the orders passed by the courts below, it is stated that the courts below have committed no error of law.

  7. Arguments were advanced by learned counsel for the parties on the above lines pleaded before us. Having considered the submissions of the learned counsel for the parties what is apparent in the present case is that the complainant is not the member of Mukka Welfare Society. It is also not disputed that the sale deeds in question were executed way back in the year 1996 and the complainant, who is not even member of the Society, raises the issue that the sale deeds were executed for the benefit of the Directors of the Society, after a long gap of more than twelve years. Sale deeds in question are registered, and not declared null and void by any court of law. It is also relevant to mention here that admittedly earlier a complaint was made by the complainant to the Deputy Commissioner in the year 2009, which was got investigated by the police and the result of the investigation was that no offence was found committed by the appellants on the ground that the dispute is of civil in nature.

  8. In view of the above facts, apparent on the record, we are of the view that the High Court and the courts below have committed grave error of law in ignoring the same. Needless to say that to constitute an offence punishable under Section 406 IPC, the essential ingredient is the “entrustment” of the property. The complaint filed by the complainant nowhere discloses that the land in question purchased in the year 1978 was entrusted to the Society for the benefit of others. It is only after entrustment is shown, it can be said that there was criminal breach of trust.

  9. In Ram Narayan Popli v. Central Bureau of Investigation 1, this Court, per majority, has explained “entrustment” in paragraph 363 as under: –“ The term “entrustment” is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all.”

  10. In State of Gujarat v. Jaswantlal Nathalal 2, this Court in paragraph 8 has observed that a mere transaction of sale cannot amount to an entrustment.

  11. At this stage we also think it proper to observe that in the present case, even if the allegations made in the complaint are taken to be true, the ingredients of the offence punishable under Section 409 IPC for which appellants are summoned, are also not made out. To constitute an offence punishable under Section 409 IPC, apart from entrustment, it is also essential requirement that it should be shown that the accused has acted in the capacity of a public servant, banker, merchant, factor, broker, attorney or agent. It is nowhere shown in the complaint that the appellants have acted in any of the above capacities.

  12. As far as offence of cheating is concerned, the same is defined in Section 415 IPC, for which the punishment is provided under Section 420 IPC. Section 415 reads as under:-“ 415. Cheating. – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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, is said to “cheat”. Explanation. – A dishonest concealment of facts is a deception within the meaning of this section. Illustrations……………”

  13. From the above language of the Section, one of the essential ingredients for the offence of cheating is deception, but in the present case, from the contents of the complaint it nowhere reflects that the complainant was deceived or he or anyone else was induced to deliver the property by deception. What was done, was so reflected in the resolutions, and sale deeds.

  14. In Mathavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others 3, a three-Judge Bench of this Court has laid down the law as to quashment of proceedings under Section 482 CrPC as follows:-“ 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

  15. In Suresh v. Mahadevappa Shivappa Danannava and another 4, criminal prosecution was quashed by the Court in respect offence of cheating noticing that the complaint was filed after a lapse of ten years.

  16. In Inder Mohan Goswami and another v. State of Uttaranchal and others 5, this Court in paragraphs 25 and 46 has observed as under: –“ 25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP (1964 AC 1254) Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys (1977 AC 1) stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved. xxx xxx xxx 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.”

  17. In view of the above discussion and facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by respondent No. 1, in respect of offences punishable under Sections 406, 409 and 420 IPC, also stands quashed.

………………

……………..J. [Dipak Misra]

……………………………..J. [Prafulla C. Pant]

New Delhi;

July 21, 2015.

1 (2003) 3 SCC 641

2 AIR 1968 SC 700

3 (1988) 1 SCC 692

4 (2005) 3 SCC 670

5 (2007) 12 SCC 1