Full Text
HIGH COURT OF DELHI
Date of Decision: 02nd May, 2024
NUTAN GAUR ..... Petitioner
Through: Mr. Sangeet Sibou, Mr. Tauseef Akhta, Ms. Ankita Meena, Mr. Jattin Sharma & Ms. Anjali Rohtagi & Ms. Rishita Sharma, Advs.
Through: Mukesh Kumar, APP for the State along
SI Vikas Kumar, PS Cyber Dwarka, SI Manoj Kumar, PS, Dwarka South, SHO/Insp. Ashish Kumar.
JUDGMENT
1. The present petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), inter-alia, praying as under: “a) Quash the Chargesheet dated 07.06.2019 in the F.I.R bearing number 338 of 2013 dated 27.09.2013 registered at Police Station, Dwarka South, New Delhi under Sections 406, 420, 468, 471 read with Section 120-B of the Indian Penal Code, 1860 and consequent criminal proceedings and consequent summoning order dated 07.11.2023 passed in C.C NO. 12545/2019 passed by Ms. Kritika Chaturvedi, Ld. M.M, Dwarka Courts, New Delhi bearing CC number 12545 of 2019; b) Pass such other or further order (s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.”
2. It is alleged that on 10.07.2012, an application form, for a debit card and a request letter was submitted to Canara Bank, for the complainant’s account. However, it is alleged that the complainant had never applied for a debit card.
3. The petitioner, was an employee at Canara Bank's Dwarka branch and it is alleged that she was responsible for issuing the debit card linked to complainant’s account.
4. Subsequently, it is alleged that, on 25.09.2012, the accused, withdrew ₹45,500 from the complainant’s account through an ATM using the improperly issued debit card.
5. On 18.06.2013, the complainant submitted a complaint for the registration of FIR. The petitioner was not arrayed as accused in the complaint or in the FIR.
6. The petitioner claimed that, on 10.07.2012, the date on which the debit card was issued, she had matched the applicant's signature and followed all proper and necessary procedures.
7. It is alleged that the FSL report did not conclusively link the signatures on the debit card application to the specimen signatures of the accused – Rohit Kumar.
8. It is alleged that the petitioner, being the employee of the bank, in furtherance of criminal conspiracy with the accused, had misappropriated the amount of the complainant, which was entrusted in the bank and had cheated the complainant by issuing the co-accused the ATM card without due identification of the signature of the complainant.
9. In the year 2015, the IO submitted a final report for the closure of the FIR in the present case however, the learned Metropolitan Magistrate-04, Dwarka Court, Delhi by order dated 19.09.2016 directed to carry out further investigation and refused to close the case in view of the protest petition filed by the complainant.
10. In compliance of the order dated 19.09.2016, further investigation was carried out and chargesheet was filed on 01.05.2019 in which the name of the petitioner was added for the first time as an accused for offences under sections 420/409/120B of the IPC.
11. The learned counsel for the petitioner submits that allegations, even if taken at the highest, by no stretch if imagination, could be given the colour of offence under Section 420/409 of the IPC. He submits that no allegation has been made or any investigation has been carried out which would point towards the fact that the petitioner had benefited in any manner or had committed any act that would fall within the definition of cheating.
12. He submits that the summoning order dated 07.11.2023 is based on conjectures and is passed unilaterally assuming that the petitioner has conspired with accused – Rohit who is absconding and no evidence or material has been found to link the petitioner to the main accused Rohit Kumar which would reveal that there was collusion on their part. In the absence of the petitioner being the beneficiary, the entire case and the summoning order issued against the petitioner is baseless and illogical and deserves to be quashed.
13. In order to ascertain the veracity of contentions made by the parties herein, it is imperative to firstly examine whether the relevant ingredients of offences which the petitioner herein had been summoned for, are prima facie made out. The relevant sections read as follows: Section 409. Criminal breach of trust by public, servant, or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
14. The Hon’ble Supreme Court in Mohd. Ibrahim and Another v. State of Bihar and Others: (2009) 8 SCC 751, observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly induced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security.
15. It is further argued that there is no deception, as well as entrustment alleged with regard to the present petitioners to make out a case under Sections 420/409 of the IPC. It was further stated that apart from bald allegations, nothing has been placed on record to support the case of the complainant.
16. In the present case, the ingredients to constitute offence under Sections 420 and 409 of the IPC are absent. There is no assertion, much less evidence, to aver that the petitioner had engaged in dishonesty, fraud, or intentional inducement to deliver a property. The allegations, even if taken at the highest, is only dereliction of duty.
17. It is though alleged that the petitioner had dominion over the property being the ATM card which has been unauthorizedly used by the accused persons, it is not alleged that there has been any dishonesty on part of the petitioner to misappropriate or convert to her own use the property of the complainant.
18. It is not alleged either in the complaint or in the chargesheet which is filed pursuant to the investigation carried out by the State that the petitioner in any manner is beneficiary of the cheated amount.
19. Neither is it alleged that the petitioner in any manner wanted to cause wrongful loss to the complainant to illegally benefit accused Rohit Kumar. The case appears to be at best the case of negligence and dereliction of duty on the part of the petitioner. The same, however, does not fall within the definition of criminal breach of trust or cheating so as to invoke the provision of Section 409 and 420 of the IPC.
20. The Hon’ble Supreme Court, in State of Haryana v. Bhajan Lal: 1992 Supp (1) SCC 335, while noting that the power of quashing of criminal proceeding should be exercised very sparingly and with circumspection, has laid down the following principles with regard to quashing:
only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala 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.”
21. The Hon’ble Supreme Court in Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors.: (1998) 1 SCC 692, held that while exercising inherent power of quashing under Section 482 of the CrPC it is for the High 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. 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 proceedings.
22. The averment that the learned MM has erroneously issued the summoning order dated 07.11.2023 whereby, summons was issued against the petitioner for offences under Sections 420/409/120B of the IPC holds water since, the same was passed de hors the material on record and without any sufficient grounds for proceedings.
23. The Hon’ble Supreme Court, in the case of Deepak Gaba v. State of U.P.: (2023) 3 SCC 423, while discussing the criteria for quashing a summoning order, held as under:
12. In case of a private complaint, the Magistrate can issue summons when the evidence produced at the pre-summoning stage shows that there is sufficient ground for proceeding against the accused. The material on record should indicate that the ingredients for taking cognizance of an offence and issuing summons to the accused is made out. [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361; Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609: (2015) 2 SCC (Cri) 687; and Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749: 1998 SCC (Cri) 1400. The proviso to Section 200 of the Code is not applicable in the present case.] xxxx xxxx xxxx
28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, 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. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412: (2012) 2 SCC (Cri) 650], as it refers to earlier case laws in copious detail.
29. In Thermax [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412: (2012) 2 SCC (Cri) 650], it was pointed out that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion.
30. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise 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. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610: (2020) 2 SCC (Cri) 828: (2020) 2 SCC (Civ) 713; Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749: 1998 SCC (Cri) 1400]; and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420: (2016) 1 SCC (Cri) 124.]
31. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.
32. While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638: (2015) 1 SCC (Cri) 479; Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528: (2017) 2 SCC (Cri) 192; and Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610: (2020) 2 SCC (Cri) 828: (2020) 2 SCC (Civ) 713.] In the present case, the said exercise has not been undertaken. xxxx xxxx xxxx
34. We must also observe that 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. [Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610: (2020) 2 SCC (Cri) 828:
Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420: (2016) 1 SCC (Cri) 124]; R.P. Kapur v. State of Punjab, AIR 1960 SC 866; and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426.] Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. 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. (emphasis supplied)
24. It is pertinent to note that the learned MM did not give any finding with regard to the satisfaction of the ingredients for offences punishable under Sections 420/406 of the IPC. Having considered the relevant arguments of the parties and decisions of this Court, I am of the considered opinion that existence of dishonest or fraudulent intention has not been made out against the petitioner.
25. Applying the dictum of State of Haryana v. Bhajan Lal (supra) to the present case, it can be safely concluded that the present case falls within the ambit of first, third and fifth category of the seven categories enlisted in the said judgment. The case, therefore, warrants intervention by this Court.
26. In view of the above, FIR No. 338/2013 and all consequential proceedings arising therefrom are quashed. The summoning order dated order dated 07.11.2023 passed by the learned Metropolitan Magistrate, Dwarka is also set aside.
27. The present petition is allowed in the aforesaid terms.
28. Pending application stands disposed of. AMIT MAHAJAN, J MAY 2, 2024 “SK”