The High Court
Case Details
Cr. M.P. No.2254 of 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2254 of 2021 ------ Fullerton India Credit Co. Ltd. (FICCL), a Non-Banking Financial Institution incorporated under the Companies Act, 1956 and registered with Reserve Bank of India having its Registered Office at Megh Towers 3rd Floor, Old No.307, New No.165, PH Road, P.O. & P.S. Maduravoyal, Chennal, Tamil Nadu- 600095 and having its Corporate Office at Floor 5 & 6, B Wing, Supreme Business Park, Supreme City, P.O. & P.S. Powai Mumbai- 400076 and having one of its branch office at 203, second floor, Mahabir Tower, Main Road Ranchi Opp. Church Complex, P.O. & P.S. Hindpiri, Ranchi 834001 represented through it duly Authorized Representative Mithila Bihari aged about 46 years, S/o- Late Kaushalendra Prasad Singh, at present working for gain as “Assistant Vice President, Legal & Compliance” at Fullerton India Credit Company Ltd. having office address at 1st Floor, Hindustan Times Building, Ashok Marg, Opposite Krishi Bhawan, Lucknow, P.O. GPO, P.S.- Hazratganj, District- Lucknow 226001 (Uttar Pradesh) … Petitioner Versus 1. The State of Jharkhand
Legal Reasoning
29.11.2019, found a prima facie case for the offence punishable under Sections 406 of the Indian Penal Code and directed to issue summons against the petitioner-company. 4. Learned counsel for the petitioner submits that the petitioner-company is neither named in the complaint nor any allegation has been made against the petitioner-company; rather the allegation is against nine proposed accused persons of the case whose names have been mentioned in the complaint. It is next submitted that admittedly the Legal Manager of the petitioner-company has lodged an F.I.R. vide Kotwali P.S. Case No.626 of 2013 involving the offence punishable under Sections 467, 468, 471, 406, 420, 120 (B) against the complainant as the complainant, in criminal conspiracy with the co-accused persons, had committed forgery for the purpose of cheating and using forged documents as genuine besides committing criminal breach of trust and cheating and for wrecking vengeance, this false case has been foisted. It is next 2 Cr. M.P. No.2254 of 2021 submitted that even if the allegations made in the complaint are to be taken true in its entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out. Hence, the continuation of this criminal proceeding will amount to abuse of process of court. It is therefore submitted that the entire criminal proceeding including the order taking cognizance dated 29.11.2019 passed by the learned Judicial Magistrate-1st Class, Ranchi in connection with Complaint Case No.376 of 2014, be quashed and set aside. 5. Learned AC to AAG-II and learned counsel for the opposite party No.2 vehemently opposes the prayer for quashing the entire criminal proceeding including the order taking cognizance dated 29.11.2019 passed by the learned Judicial Magistrate-1st Class, Ranchi in connection with Complaint Case No.376 of 2014, as prayed for by the petitioner and submit that withholding of the relieving letter of the complainant by the petitioner-company amounts to criminal breach of trust. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record it is pertinent to mention here that it is a settled principle of law that to make out a criminal breach of trust it is not sufficient to show that money has been retained by the accused
Arguments
2. Rudradev Mukherjee S/o- Sri Bhabadev Mukherjee, R/o- Flat No. A-2, Rajshree Apartment, Basant Vihar, Road No.1A, P.O.- Doranda, P.S.- Argora, District- Ranchi, Jharkhand. For the Petitioners For the State For the O.P. No.2 … Opposite Parties ------ : Mr. Ashish Jha, Advocate : Mr. Ravi Kr. Mishra, AC to AAG- II : Mr. Mritunjay Chaudhary, Advocate Mr. Sachin Kumar, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 1 Cr. M.P. No.2254 of 2021 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order taking cognizance dated 29.11.2019 passed by the learned Judicial Magistrate- 1st Class, Ranchi in connection with Complaint Case No.376 of 2014. 3. The brief fact of the case is that the complainant was working in capacity of a rank equivalent to the Manager of the petitioner-company. His resignation was not accepted by the company by its superior officer and his two months’ salary was withheld and his relieving letter has not been issued. Admittedly, the company is not named as that of the proposed accused in the complaint; still the learned Judicial Magistrate-1st Class, Ranchi vide order dated
Decision
but it must also to be shown that the accused dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the accused did not pay the money to the complainant does not amount to criminal breach of trust as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar and Others vs. State of Bihar and Another reported in (2014) 10 SCC 663 paragraph-18 of which reads as under:- 3 Cr. M.P. No.2254 of 2021 “18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants 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 appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no in to misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” iota of allegation as the dishonest intention 7. Now, coming to the facts of the case; at best there is allegation of retaining two months’ salary and not issuing the relieve order of the complainant. Certainly, the same cannot constitute dishonest misappropriation of a property which is a sine qua non to constitute the offence punishable under Section 406 of the Indian Penal Code. Hence, in the considered opinion of this Court, even if the allegations made in the complaint, statement on solemn affirmation and the statement of inquiry witnesses are taken to be true in its entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner-company. Hence, the continuation of this criminal proceeding will amount to abuse of process of court and this is a fit case where in the interest of justice, the entire criminal proceeding including the order taking cognizance dated 29.11.2019 passed by the learned Judicial Magistrate-1st Class, Ranchi in connection with Complaint Case No.376 of 2014, be quashed and set aside. 8. Accordingly, the entire criminal proceeding including the order taking cognizance dated 29.11.2019 passed by the learned Judicial Magistrate-1st Class, 4 Cr. M.P. No.2254 of 2021 Ranchi in connection with Complaint Case No.376 of 2014, as prayed for by the petitioner, is quashed and set aside. 9. In the result, this Cr.M.P. stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 05th of July, 2023 AFR/ Animesh 5