The Allahabad High Court while quashing the entire case proceedings as well as summoning order in connection with an FIR lodged against the elder brother/applicant under Section 406 IPC, said that the court always cherishes the sacrifice of Bharat, the younger brother of the Bhagwan Shri Ram but the complainant for his conduct towards his elder brother could be termed as a “Kalyugi Bharat”.
A single-judge bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application filed by Sanjeev Chaddha.
The applicant has approached this Court to quash a chargesheet dated 28.01.2019 under Section 406 IPC, Police StationKidwai Nagar, District- Kanpur Nagar, cognizance as well as summoning order dated 08.02.2019 passed in Criminal Case pending before the Court of ACMM, Court Kanpur Nagar.
The facts of the case are that two brothers are at loggerheads and their relation became so inimical that after death of their father, they are now entangled in the criminal proceeding.
The complainant, an advocate, has alleged that applicant, his elder brother, has committed offence of criminal breach of trust that he has not returned Rs 2.20 lakh given to him on different dates for his business, but despite earlier repeated assurance of returning it, he after death of their father, refused to return it.
The complainant has also alleged that on the basis of an alleged Will, the applicant has not only opened a joint account with his father but after his death, he withdrew money without his consent. An FIR was lodged by the complainant against his elder brother i.e applicant for above referred offence on 12.11.2017, wherein after investigation, a charge-sheet was filed on 28.01.2019, for an offence under Section 406 IPC, only for allegation that applicant has not returned Rs 2.20 lakh. The other allegations were not found to be true.
On charge-sheet, cognizance of offence was taken and a case was registered on 08.02.2019. On the same day, summons were issued to the applicant.
The applicant has challenged the chargesheet, cognizance as well as summoning order in the application filed under Section 482 CrPC, which is pending for the last four years.
Thereafter, parties were granted time to finalise negotiation and, therefore, the matter was adjourned on various dates i.e 04.07.2024, 02.04.2024, 09.04.2024, 09.05.2024, 22.05.2024 and lastly on 20.08.2024, however, when parties have not able to reach to any mutual agreement, the Court decided to hear it finally.
During the final hearing also, the Court tried to mediate, however, unfortunately, with the adamant approach of parties, particularly of the complainant, no final agreement could arrive and matter was heard finally.
Mithilesh Kumar Shukla, counsel for applicant, has submitted that charge-sheet was filed only for offence under Section 406 IPC on an allegation that complainant has paid Rs 2.20 lakh on different dates to applicant i.e his elder brother for business purpose, however, despite assurance same was not returned. All other allegations about withdrawing money from a joint account by the applicant by way of cheating and of a forged Will were found false.
Counsel also submitted that during negotiations, the applicant has returned the said amount (Rs 2.20 lakh) to the complainant, which has not been seriously disputed by the complainant appearing in person.
Counsel by referring to the contents of Section 406 IPC submitted that there was no entrustment, rather if allegations are considered to be true, it would be a commercial dispute, i.e a civil dispute. The complainant has pointed it with colours of criminality.
The complainant has not stated during investigation that money was given as an entrustment. There was no written agreement between parties.
Counsel also submitted that the summoning order as referred has not assigned any reasons that there are sufficient grounds to proceed.
The Court noted,
The above submissions are opposed by Rajiv Chaddha, the complainant appearing in person. He submitted that the applicant has committed cheating also. The alleged Will is a document of fraud, however, failed to convince the Court on the basis of above referred brief facts of charge-sheet as well as evidence collected during investigation. The only allegation which was found sufficient to file a charge-sheet was that the amount of Rs 2.20 lakh was not returned to the complainant.
The allegation of cheating was not even found sufficient to file a charge-sheet. The complainant has also not filed any civil litigation to challenge the Will. The argument of unfair investigation could not be taken in the application and for that there may be an alternative remedy.
In order to appreciate the rival submission, I have also carefully perused the case diary, provided by the complainant, that applicant has provided relevant documents such as a copy of the Will and details of opening of joint account. The Investigating Officer has also considered the report submitted by concerned Bank that it was a joint account duly signed by applicant and his father and operation of account was ‘either of survival’, therefore, there is no error committed during investigation for non-filing the charge-sheet for offence of cheating, the Court observed.
Rakesh Kumar Mishra, AGA for State has supported the charge-sheet but has not denied the ingredients of Section 406 IPC, in which facts may not be made out.
The Court observed that,
As referred above, for purpose of Section 406 CrPC, the requirement for commission of an offence of criminal breach of trust is that there must be entrustment with property, which was dishonestly misappropriate or converted to his own use and it must be in violation of any direction of law or any legal contract express or implied, however, in the case, neither there was an ‘entrustment’ in such sense nor there was any proof that it was ‘dishonestly misappropriate’ nor there was any evidence that such act was in violation of any legal contract express or implied, therefore, on basis of material, none of ingredient of offence of criminal breach of trust is made out.
The Court at this stage, also takes note that alleged amount has already been returned during pendency of this application, when parties were trying to negotiate. The proceedings appear to be initiated by the complainant only to put pressure on his elder brother to negotiate since there is a Will wherein the complainant is not a beneficiary.
The said Will has been alleged to be a creature of fraud but no civil proceeding has been still initiated by the complainant. The facts of the case are not only squarely covered by facts as well as on law as observed in Deepak Gaba (supra) but it is a fit case to invoke inherent jurisdiction in terms of paragraph 102(7) of State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426 that present criminal proceedings was initiated by the complainant only for purpose of wrecking vengeance.
In the aforesaid circumstances, not only the ingredients of Section 406 IPC are not made out but proceedings are also creature of malafides and were initiated only to harass the applicant by giving cloak of a criminal case to a dispute which was essentially of a civil nature, the Court further observed while allowing the application.
Therefore, the Court quashed the entire proceedings arising out of charge-sheet dated 28.01.2019 under Section 406 IPC, Police Station Kidwai Nagar, District Kanpur Nagar (arising out of Case Crime No. 344 of 2017) as well as cognizance and summoning order dated 08.02.2019 passed by the Court of ACMM, Kanpur Nagar and the complainant is directed to pay Rs 25,000 as a cost of litigation to the applicant within four weeks and a proof of it be placed on record of the case.