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Vivek Vs. Vishwam Power & Buildcon Pvt. and Ors. - (High Court of Bombay) (07 Jan 2020)

High Court can invoke its powers under Section 482 of CrPC, if non-application of mind is revealed and no offence is made out

MANU/MH/0020/2020

Criminal

Present petition has been filed by original accused, challenging the order of issuance of process against him for the offence punishable under Section 406 and 420 of Indian Penal Code, 1860 (IPC) by learned Judicial Magistrate First Class, which was confirmed in Criminal Revision Application by learned Additional Sessions Judge. It has been submitted on behalf of Petitioner that, both the Courts below have not considered the contents of the complaint and the ingredients of the offences under which process has been issued.

The contents of complaint do not spell that there was element of cheating on the part of accused and it could be noticed since beginning. If there was such element, then accused might not have given payment to complainant as per contract. Complainant has not intentionally stated as to how much amount was given by the accused. In fact, no particulars have been given as to when complainant had asked accused to give further work order, material, remaining amount of the work already done etc. At any early point of time, complainant had not suspected an element of cheating or criminal breach of trust. On the contrary, the complainant has done that work also which was not as per work order. It could have been refused by it. The matter relates to civil dispute.

Section 405 of IPC prescribes, "whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

The contents of the complaint in this case do not show any entrustment by the complainant to the accused. It is tried to be contended that the cheque which was given by the complainant as security has not been returned by the accused. However, there is no averment in the complaint that the said cheque has been converted by accused to his use or it has been used by accused with dishonest intention or it has been disposed of in violation of any direction of law prescribing the mode in which such trust is to be discharged.

Further as regards ingredients of Section 415 of IPC are concerned, it should show-"(i) Deception of any persons; ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit." Both the Courts below have failed to consider that all the ingredients of the offences have not been even made prima facie for issuing process. It would be an abuse of process of law to continue the prosecution against accused with such material.

In the case of Mehmood UL Rehman vs. Khazir Mohammad Tunda, the Supreme Court held that no reasoned, formal or speaking order is required. However, it should reflect the application of mind. The Magistrate must be satisfied that, there is a material to issue process and if the complaint on the face of it does not disclose commission of the offence, then the Magistrate should refrain himself from taking cognizance. It has been clarified in that case by the Hon'ble Supreme Court that if non-application of mind is revealed and no offence is made out, then the High Court can invoke its powers under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) in order to prevent abuse of the power of the Criminal Court. The process of the criminal court shall not be made a weapon of harassment.

When both the Courts failed to consider the facts narrated and the ingredients of the offences and the order is passed without application of mind; case is made out for the exercise of inherent powers of this Court under Section 482 of the CrPC for quashing the proceedings as well as the order of issuing process passed against the accused. Writ Petition thus, stands allowed.

Relevant : Mehmood UL Rehman vs. Khazir Mohammad Tunda, MANU/SC/0374/2015

Tags : PROCEEDINGS   ISSUANCE   LEGALITY  

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