2016 (6) TMI 1447 - HC - Indian Laws

Cheating - breach of trust - siphoning off of funds - non application of mind by learned Magistrate - it is claimed that the magistrate has ignored discrepancy between the complaint and verification - HELD THAT - It is a matter of record that allegations against present Petitioner made in the complaint do not find place in the verification statement. Moreover it is the contention of the complainant that accused No. 1 had siphoned of the deposit in favour of the Petitioner without her permission. It is not the case of the complainant that she had verified from the Petitioner that the said amount was entrusted in his favour. No overt act is attributed to the present Petitioner. It is a matter of record that in the complaint also complainant has not even whispered that in the course of entire transaction she had no communication with the present Petitioner or that she had entrusted the amount of Rs. 4 Lakhs to him or had verified the contention of the accused No. 1. The sanctity of recording the verification statement is that the contents of the complaint are reproduced on oath and the complainant stands by the contents of the complaint. It is clear that there is no whisper against present Petitioner in the verification statement. It is clear that learned Magistrate has failed to appreciate the discrepancy in the complaint and verification statement. The fact that there was material discrepancy in the complaint and the verification learned Magistrate ought not to have issued process against present Petitioner. Issuance of process and continuance of criminal proceedings against present Petitioner in view of the above mentioned fact would be abuse of process of Law. It is more than clear that none of the ingredients contemplated under section 405 of Indian Penal Code could be applicable to the present petitioner as there is no element of entrustment in favour of present Petitioner. The genuineness and truthfulness of contents of the complaint have to be substantiated in the examination on oath. It is in these premises that the petition deserves to be allowed.

Summary

Issues:
1. Validity of the order of issuance of process against the petitioner for offences under IPC.
2. Discrepancy between the complaint and the verification statement.
3. Application of section 406 of the Indian Penal Code.
4. Legal principles regarding the examination of the complainant under section 200 of the Code of Criminal Procedure.

Analysis:

Issue 1: Validity of the order of issuance of process
The petitioner challenged the correctness and validity of the order of issuance of process against him for offences under section 406, 420 r/w 34 of the Indian Penal Code. The petitioner filed a Criminal Revision Application after the Additional Sessions Judge dismissed the revision application. The High Court considered the challenge in a Writ Petition.

Issue 2: Discrepancy between complaint and verification statement
The complainant alleged that the petitioner was involved in a case of breach of trust and cheating. However, the High Court noted that the allegations against the petitioner in the complaint did not align with the verification statement. The court emphasized the importance of the verification statement in reflecting the contents of the complaint on oath. It was observed that the complainant did not attribute any overt act to the petitioner in the verification statement, highlighting a material discrepancy.

Issue 3: Application of section 406 of the Indian Penal Code
The court analyzed the provisions of section 406 of the Indian Penal Code, which pertain to criminal breach of trust. It was noted that the ingredients of section 405 defining criminal breach of trust were not applicable to the petitioner as there was no element of entrustment in favor of the petitioner. The court emphasized that the complainant failed to establish the necessary elements against the petitioner under the relevant sections of the IPC.

Issue 4: Legal principles regarding examination of complainant under section 200
The court referred to legal precedents, including judgments from the Hon'ble Apex Court and previous cases, to underscore the importance of the examination of the complainant under section 200 of the Code of Criminal Procedure. The court highlighted that the examination on oath by the Magistrate is crucial for eliciting the truth from the complainant. The court stressed that the judicial duty of the Magistrate in recording the statement requires an application of judicial mind to ensure the genuineness and truthfulness of the complaint contents.

In conclusion, the High Court allowed the petition, quashed the order of issuance of process against the petitioner, and set aside the decision of the Judicial Magistrate First Class. The court emphasized the necessity of reflecting the subjective satisfaction of the Magistrate based on the examination on oath in the order of issuance of process. The judgment was based on the principles of law regarding the examination of the complainant and the essential elements required to establish criminal liability under the Indian Penal Code.