Brij Mohan Painuly and Another v. State of Uttarakhand Another

Judgment

1. The present application under Section 482 of the Code of Criminal Procedure has been filed by the Applicants, namely Brij Mohan Painuly and his son Lalit Mohan Painuly, seeking quashing of the entire proceedings of Criminal Case No. 69 of 2021, titled State vs. Brij Mohan Painuly and others, pending before the Court of the Additional Chief Judicial Magistrate, Dehradun. The Applicants further seek quashing of the charge-sheet submitted in the said case, as well as the cognizance and summoning order dated 04.04.2021 passed by learned Magistrate, whereby they were summoned to face trial for offences punishable under Sections 406, 506 and 120 B IPC.

2. The genesis of the criminal proceedings lies in a complaint lodged by Respondent No. 2, Manoj Dhoundiyal, wherein it is alleged that the Applicants had failed to return certain amounts claimed to have been taken from the complainant in connection with a family property-related

issue. Based on the complaint, an FIR was lodged and an investigation was undertaken by the Police, culminating in the submission of a charge- sheet under the aforementioned penal provisions. Upon receiving the Criminal Misc. Application No.1904 of 2021, Brij Mohan Painuly and Anr. Vs. State and Anr.- 1 Ashish Naithani J. charge-sheet, the learned Magistrate took cognizance and issued summons to the Applicants.

3. Learned counsel for the Applicants submitted that the entire dispute is civil in nature and arises out of financial transactions within an extended family. It was urged that even if the complaint is taken at its face value, no act of entrustment is alleged so as to attract Section 406 IPC. It was further submitted that mere failure to repay money cannot, by itself, constitute criminal breach of trust unless dishonest intention at the inception of the transaction is shown, which is not the case here.

4. Learned counsel for the Applicants further submitted that the essential ingredients of the offence of cheating under Section 420 IPC are wholly absent, since there is no allegation that at the time of receiving the money, the Applicants had any fraudulent or dishonest intention. The complaint, even if accepted in its entirety, reveals at best a dispute relating to monetary refund arising out of family arrangements, which cannot be given the colour of a criminal offence.

5. It was next submitted that the offence under Section 506 IPC is also not made out, as the allegations regarding threat or intimidation are vague and lacking in particulars. Learned counsel argued that the allegations have been made only to bring in a penal provision and exert pressure, and no specific, credible or proximate act of criminal intimidation has been disclosed.

6. Learned Counsel for the Applicants further submitted that the learned Magistrate has taken cognizance in a routine and mechanical manner, without applying judicial mind to the material on record. It was Criminal Misc. Application No.1904 of 2021, Brij Mohan Painuly and Anr. Vs. State and Anr.- 2 Ashish Naithani J. contended that the summoning order dated 04.04.2021 does not reflect any consideration of the legal ingredients of the offences alleged and is, therefore, vitiated. According to the Applicants, the summoning order is cyclostyled in nature and does not record any reasons, thereby rendering it unsustainable in law.

7. Learned AGA appearing for the State submitted that the charge- sheet has been filed after due and proper investigation and that the material collected by the Investigating Officer prima facie discloses the commission of the offences alleged. It was contended that, at the stage of cognizance and summoning, the Court is required only to ascertain whether a prima facie case exists, and that the adequacy or sufficiency of the evidence is not to be evaluated at this stage. Learned AGA further argued that disputed questions of fact cannot be adjudicated in proceedings under Section 482 of the Code of Criminal Procedure.

8. Learned AGA further submitted that the High Court, in exercise of inherent powers, should exercise restraint and should not interfere unless the case falls squarely within the parameters laid down for quashing. It was contended that the investigation had culminated in a charge-sheet and that the contents of the complaint, the statements recorded during the investigation, and the nature of the allegations reveal that a case for trial is made out; therefore, the proceedings should not be quashed at this stage.

9. Learned counsel for Respondent No. 2 supported the submissions of the State and submitted that the complaint discloses that the Applicants had taken money and failed to return it despite repeated requests. It was urged that the conduct of the Applicants shows dishonest Criminal Misc. Application No.1904 of 2021, Brij Mohan Painuly and Anr. Vs. State and Anr.- 3 Ashish Naithani J. intention and refusal to honour their commitments, which, according to Respondent No. 2, attracts criminal liability. Learned counsel argued that the complaint and the statements recorded during the investigation sufficiently establish the involvement of the Applicants and justify the summoning order.

10. Learned counsel for Respondent No. 2 lastly submitted that the allegations made in the complaint are serious and that the Applicants should face trial. It was contended that interference under Section 482 CrPC at this stage would thwart the prosecution and deny justice to Respondent No. 2.

11. Heard learned counsel for the Parties and perused the records.

12. The central question for consideration is whether the allegations in the complaint, taken at their face value and accepted in entirety, make out the essential ingredients of the offences under Sections 406, 506 and 120 B of the IPC, to justify the continuation of the criminal proceedings in Criminal Case No. 69 of 2021.

13. Insofar as the offence of criminal breach of trust under Section 406 IPC is concerned, the foundational requirement is that there must be entrustment of property or dominion over property to the accused, followed by dishonest misappropriation or conversion. A careful reading of the complaint discloses that the allegations relate to money given in the course of an internal family financial arrangement. There is no assertion that the money was entrusted for a specific purpose, nor any indication that the Applicants had dominion over such money in any fiduciary or special capacity. Absence of entrustment is fatal to the invocation of Section 406 IPC. Criminal Misc. Application No.1904 of 2021, Brij Mohan Painuly and Anr. Vs. State and Anr.- 4 Ashish Naithani J.

14. Even if it is assumed that money was handed over, the material indicates that the transaction was essentially civil in nature, arising out of personal or family financial understanding. A mere failure to return money or honour a financial commitment, without more, does not constitute criminal breach of trust. The Supreme Court has consistently held that where the dispute relates to payment or refund of money, and where there is no clear allegation of dishonest intention at the inception, criminal prosecution under Section 406 IPC cannot be sustained.

15. With respect to the offence of cheating under Section 420 IPC, the law is well settled that the complaint must disclose a fraudulent or dishonest intention at the time when the alleged representation was made. A subsequent inability or failure to repay money, arising from changed circumstances or financial hardship, cannot be treated as evidence of initial fraudulent intention. In the present case, there is no allegation that at the time the Applicants received the money, they had any fraudulent intention. The grievance of Respondent No. 2 is that the amount was not refunded despite the request. This allegation, even if accepted as true, does not satisfy the legal requirement of deception at inception.

16. The offence under Section 506 IPC also does not appear to be made out. The allegations relating to threat or intimidation are vague, general and lacking in particulars. There is no specific act attributed to the Applicants which could reasonably cause alarm or compel Respondent No. 2 to part with money or refrain from any act. Allegations of threat, when stated in such broad and indistinct terms, cannot constitute criminal intimidation. Criminal Misc. Application No.1904 of 2021, Brij Mohan Painuly and Anr. Vs. State and Anr.- 5 Ashish Naithani J.

17. The allegation of conspiracy under Section 120 B IPC also cannot survive independent examination. When the substantive offences themselves are not made out, the charge of conspiracy cannot stand in isolation. No material has been brought on record to show any meeting of minds or pre-arranged plan between the Applicants to commit any unlawful act or to pursue a lawful act by unlawful means.

18. The investigation in the present case has culminated in a charge- sheet; however, the existence of a charge-sheet does not dilute the duty of the Court to examine whether the basic ingredients of the offences are disclosed. The Court, while exercising jurisdiction under Section 482 CrPC, is required to assess whether the allegations, taken as a whole, disclose a prima facie offence. If the allegations do not satisfy the statutory ingredients, the continuation of criminal proceedings would amount to an abuse of the process of law.

19. On an overall consideration, the allegations in the complaint, even if accepted as wholly true, do not disclose the essential ingredients of the offences under Sections 406, 506 or 120 B IPC. The dispute appears to be essentially civil in nature, relating to the refund of money within a family arrangement. The criminal process cannot be permitted to be used for exerting pressure in a civil dispute.

20. Continuation of the proceedings in Criminal Case No. 69 of 2021 in such circumstances would amount to abuse of the process of the Court. The present case falls within the parameters where interference under Section 482 CrPC is warranted in order to secure the ends of justice. Criminal Misc. Application No.1904 of 2021, Brij Mohan Painuly and Anr. Vs. State and Anr.- 6 Ashish Naithani J. ORDER In view of the foregoing observations, this Court is satisfied that the allegations made in the complaint and the material collected during the investigation do not disclose the essential ingredients of the offences punishable under Sections 406, 506 and 120 B IPC. The dispute between the parties is essentially civil in nature, and the continuation of the criminal proceedings would amount to an abuse of the process of the Court. Accordingly, the present Criminal Miscellaneous Application under Section 482 Cr.P,C is allowed. The entire proceedings of Criminal Case No. 69 of 2021, titled State vs. Brij Mohan Painuly and others, pending in the Court of the Additional Chief Judicial Magistrate, Dehradun, arising out of the charge-sheet submitted in this matter, are hereby quashed. The cognizance and summoning order dated 04.04.2021 passed by the learned Additional Chief Judicial Magistrate, Dehradun, summoning the Applicants for offences under Sections 406, 506 and 120 B IPC, is also quashed. The application stands disposed of accordingly. Arti (Ashish Naithani J.) 11.12.2025 Criminal Misc. Application No.1904 of 2021, Brij Mohan Painuly and Anr. Vs. State and Anr.- 7 Ashish Naithani J.