Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2023 (1) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (1) TMI 1354 - SC - Indian LawsChallenge to summon order - vague summon order - Neither does the summoning order name the Manager or the Chief Manager, JIPL, who have been summoned to stand trial Under Section 406 of the Indian Penal Code, 1860 - HELD THAT:- Criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405 of the Indian Penal Code. The complaint does not directly refer to the ingredients of Section 405 of the Indian Penal Code and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405 of the Indian Penal Code in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. In the present case, the ingredients to constitute an offence Under Section 420 read with Section 415 of the Indian Penal Code are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415 of the Indian Penal Code. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent No. 2 - complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415 of the Indian Penal Code are not satisfied, the offence Under Section 420 of the Indian Penal Code is not made out. The assertions made in the complaint and the pre-summoning evidence led by Respondent No. 2 - complainant fail to establish the conditions and incidence of the penal liability set out Under Sections 405, 420, and 471 of the Indian Penal Code, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims - The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and his/her witnesses when examined Under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the Accused to stand the trial, summons should be issued. The High Court, while dismissing the petition filed Under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge - The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the Accused, summons should not be issued. The order of the High Court, the summoning order and the order issuing non-bailable warran passed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh are set aside and quashed - Appeal allowed.
|