10 June 2024


Judgments

High Court of Madras

Duraisamy and Ors. Vs. The Inspector of Police, District Crime Branch, Cuddalore

MANU/TN/3962/2021

07.06.2021

Criminal

Mere fact that, Petitioners did not pay the money to complainant does not amount to criminal breach of trust

The present Criminal Original Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (CrPC), to call for the records relating to the charge sheet in Complaint case on the file of the learned Judicial Magistrate and quash the same. The learned counsel for the Petitioners would submit that, a pure commercial/contractual transaction has been given a criminal colour only for the purpose to harass the Petitioners, which is not legally sustainable. The said transaction, as averred in the charge sheet, is purely borne out by contract dated 23rd April, 2013 and there is no criminality to attract the offences under Sections 406 and 420 of Indian Penal Code, 1860 (IPC). Further, the charges levelled under Sections 406 and 420 of IPC does not attract to the present facts of the case.

Admittedly, there is a contract existing between the Petitioners and the defacto complainant. When the Petitioners had requested for 100 tonnes of old iron from the defacto complainant, the parties had entered into a contract and the said contract was duly signed by both the parties. While that being the case, the defacto complainant cannot now take a turn and seek for a direction under the CrPC, that too when the present case is purely civil in nature, which involves a commercial transaction between the petitioners and the defacto complainant and no criminal offence has been made out.

The dispute between the parties, at the most, can be said to be the civil dispute and it is tried to be converted into the criminal dispute. Therefore, present Court is of the opinion that, continuing the criminal proceedings against the Petitioners will be an abuse of process of law and, therefore, the criminal proceedings are liable to be quashed. Merely because the Petitioners have not have paid the amount due and payable under the agreement or even assuming not paid the amount in lieu of one month Notice, this by itself cannot be said to be a cheating and/or having committed offence under Sections 406 and 420 of the IPC, as per the judgment of Hon'ble Supreme Court in Vinod Natesan Vs. State of Kerala & Ors.

In the present case on hand, looking at the allegations in the charge sheet, on the face of it, this Court finds no allegations are made attracting the ingredients of Section 406 of IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the Petitioners in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that, the Petitioners did not make payment to the defacto complainant and that the Petitioners utilized the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the money/property. To make out a case of criminal breach of trust, it is not sufficient to show that, money has been retained by the Petitioners. It must also be shown that, the Petitioners dishonestly disposed of the same in some way or dishonestly retained the same.

The mere fact that the Petitioners did not pay the money to the complainant does not amount to criminal breach of trust. Even if all the allegations in the charge sheet taken at the face value are true, present Court is of the view that, basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a short cut for other remedies. Since, no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 406/420of IPC are missing, the prosecution of the Petitioners under Sections 406/420 of IPC is liable to be quashed. The proceedings pending on the file of the learned Judicial Magistrate is quashed. Petition allowed

Tags : Misappropriation Prosecution Legality

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