Search By Topic: Penal Laws

501. (HP HC) 09-03-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 102 – Seizure of property -- Police officer can seize any property, which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of commission of any offence.

(Para 15)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 102 – Indian Penal Code, 1860 (45 of 1860), Section 420 – Cheating -- Seizure of Bank account -- Petitioner/ accused received money from complainant and deposited the same in Adarsh Credit Cooperative Society and in the Post Office -- Nowhere alleges that the bank accounts of petitioner/ accused contains property received from complainant or relevant accounts were used for transaction at the time of commission of alleged offence of cheating so as to create suspicion of commission of offence through these bank accounts -- Not a case that Bank Accounts of accused is suspected for depositing/withdrawing or operating or transacting the stolen property – Held, necessary ingredient, empowering the Investigating Officer to seize the Bank Accounts of petitioner are missing and thus seizure/freezing of Bank Accounts of the petitioner is not sustainable.

(Para 16)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 102 – Indian Penal Code, 1860 (45 of 1860), Section 420 – Cheating -- Seizure of Bank account -- Instigating Agency submitted cancellation report but Law Officer raised certain objections but till date investigation has no progress -- Nothing to point out that how de-freezing of the account shall come in the way of Investigating Agency in investigating and concluding the investigation -- Pendency of investigation, that too for the last three years, is also not permissible under law for infinite period – Petitioner held entitle for de-freezing of her accounts.

(Para 17-19)

504. (Delhi HC) 03-03-2023

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Cheque by Company – Vicarious liability of person responsible – Pleadings -- In order to make a person vicariously liable for an offence committed by company u/s 138 of the NI Act, the first and foremost pre-condition is that the said person should either be a signatory of the cheque or should be holding a position in the company and should also be responsible for the conduct of the business of the company while holding such designation -- Complainant also has to plead the exact role and the manner by which the said person is alleged to be responsible for the commission of the alleged offence.

(Para 12-14)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheques by Partnership Firm – Quashing of complaint -- Petitioner is not an authorised signatory -- Cheques were handed over by other partner -- Only allegation against the petitioner is that she had participated in the negotiations along with other partner and was also responsible for conduct of the business and accused company was working through the petitioner -- It is, however, not mentioned that in what capacity, the petitioner was working -- Petitioner is the wife of other partner in the accused firm -- On the date when the alleged offence was committed, the petitioner was not a partner – Holding a Trial against the petitioner u/s 138 read with Section 141, is utmost abuse of the process of law and the Ld. Trial Court has passed the summoning order without any application of mind – Impugned order and complaint in relation to the petitioner is quashed.

(Para 16-23)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Cheque bounce complaint – Quashing – Inherent power of High Court u/s 482 Cr.P.C -- High Court is not to conduct a mini trial by considering the defence of the accused or holding an inquiry into the merits of the matter -- However, if, on the face of the documents which are beyond suspicion or doubt, the accusations against the petitioner are found to be frivolous, in order to prevent the injustice and abuse of the process of law, it is incumbent that appropriate relief is granted by exercising power under Section 482 of the Cr.P.C. -- Where ingredients of an offence are lacking against an accused, it is the duty of the Court to discharge such accused.

(Para 20-22)

505. (SC) 28-02-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 107, 306 – Abetment of suicide -- In order to bring the case within the purview of ‘Abetment’ u/s 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused -- For the purpose proving the charge u/s 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.

(Para 10)

B. Indian Penal Code, 1860 (45 of 1860), Section 498-A, 306 – Indian Evidence Act, 1872 (1 of 1872), Section 113-A – Cruelty – Abetment of suicide -- Nothing comes out from evidence as to whether the death was suicidal or not -- None of the witnesses mother, father, uncle and mediator of marriage  examined by the prosecution had any knowledge as to whether the deceased had jumped into the well or she had accidently slipped into the well -- PW-21/ Doctor opined that the death of the deceased was due to the drowning as a result of Asphyxia, there was no opinion given by her nor any opinion was sought from her as to whether it was a suicide committed by the deceased or it was an accident by which she fell down in the well -- Even if it is presumed that the deceased had committed suicide, there was no evidence whatsoever adduced by the prosecution that there was an abetment on the part of any of the accused which had driven her to commit suicide -- No evidence worth the name to show that any of the appellants-accused had either instigated or intentionally aided or abetted the deceased to commit suicide or had caused any abetment as contemplated u/s Section 107 of the IPC -- While upholding the conviction of the appellants u/s 498A, appellants acquitted from the charges u/s 306 of IPC by giving them benefit of doubt.

(Para 11-17)

C. Indian Penal Code, 1860 (45 of 1860), Section 498-A, 306 – Indian Evidence Act, 1872 (1 of 1872), Section 113-A -- Suicide within 7 year of marriage – Presumption u/s 113-A of Evidence Act -- Mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.

(Para 14)

506. (SC) 28-02-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 302, 201, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 8, 24, 27 -- Murder -- Circumstantial evidence -- No one has seen the commission of crime -- Basic links in the chain of circumstances starts with motive, then move on to last seen theory, recovery, medical evidence, expert opinions if any and any other additional link which may be part of the chain of circumstances.

(Para 12)

B. Indian Evidence Act, 1872 (1 of 1872), Section 8 -- Circumstantial evidence – Role of Motive -- In a case of circumstantial evidence, motive has an important role to play -- Motive may also have a role to play even in a case of direct evidence but it carries much greater importance in a case of circumstantial evidence than a case of direct evidence -- It is an important link in the chain of circumstances.

(Para 15)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 201, 34 – Indian Evidence Act, 1872 (1 of 1872), Section 8, 24, 27 -- Murder -- Circumstantial evidence -- Prosecution not come forward with any motive – Dead body not recovered, only a limb was recovered but no DNA testing was carried out – In respect to last seen theory in the first information (PW-7) not mentioned that deceased left his house along with the appellant and ‘juvenile K’ although in his statement before the Trial Court stated so but when confronted with his statement u/s 161 CrPC and also about the entry in the police records, he had no explanation for the same -- PW-25/ mother, the main witness of the last seen stated that when she returned from the office around 5 PM on 19.06.2007, she saw deceased/son going out on the motor bike of his father and she followed her son upto the gate and saw the appellant and ‘juvenile K’ standing at the gate, this witness in her cross-examination when confronted with her statement u/s 161 CrPC said that no such statement is there, although according to her, she had told the Investigating Officer that she had seen the appellant and ‘juvenile K’ at her gate – If the extra-judicial confession accepted, the statement of last seen theory given by the mother (PW-25) becomes difficult to be given any credibility -- Recoveries which is an important link in the chain of circumstances the recoveries have been from an open place – Major links of the chain of circumstances have not been proved -- Appellant would be entitled to benefit of doubt -- Appeal allowed and the appellant acquitted of all the charges.

(Para 15-22)

D. Indian Evidence Act, 1872 (1 of 1872), Section 24 -- Retracted extra-judicial confession – Extra-judicial confession is a weak piece of evidence and especially when it has been retracted during trial – It requires strong evidence to corroborate it and also it must be established that it was completely voluntary and truthful.

(Para 21)

512. (SC) 22-02-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 302 – Constitution of India, Article 136 -- Conviction by Trial Court – Appeal dismissed by High Court -- Scope of Appeal in Supreme Court -- Wholesome reappreciation of evidence is not within the scope of appeal.

(Para 13)

B. Evidence law -- Discrepancy in deposition – Effect of -- PW-1, sixty-five years of age, was deposing before the Court from her memory after one year from the incident, such discrepancies would not result in rejection of her testimony altogether.

(Para 16.2)

C. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Murder -- Circumstantial evidence -- Medical officers established that the child suffered strangulation with a wound measuring 20 cm in length and 2 cm in breadth around the neck and with thyroid cartilage bone having been fractured -- PW-8/ Doctor opined that if outer end of the saree was twisted and put around the neck and the person was strangled, there was a chance of such a wound -- The saree in question duly recovered from the appellant and was said to be carrying blood stains – In statement u/s 313 CrPC, the appellant has not given any explanation whatsoever and has not made any statement except denying the circumstances put to her -- Victim child was last seen alive with the appellant only; she was required to explain the circumstances leading to the demise of the child -- Burden of Section 106 of the Evidence Act operates heavily against the appellant – No case for interference with the concurrent findings of fact is made out – Conviction and sentencing of the appellant under Section 302 IPC cannot be faulted.

(Para 17-22)

515. (SC) 17-02-2023

A. Indian Evidence Act, 1872 (1 of 1872), Section 7, 106 -- Circumstantial evidence – Last seen theory -- Last seen theory based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation u/s 106 of the Evidence Act with regard to the circumstances under which death might have taken place -- If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.

(Para 9)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 7, 27, 106 – Constitution of India, Article 136 -- Murder -- Homicidal death -- Circumstantial evidence – Last seen theory -- Petitioner had taken the deceased with him on the previous day evening and thereafter he was also seen with the deceased by the witness (PW-4) and the very next day early morning, the dead body of the deceased was found lying in the field at village -- Time gap between the period when the deceased was last seen with the accused and the recovery of the corpse of the deceased being quite proximate, the non-explanation of the petitioner with regard to the circumstance under which and when the petitioner had departed the company of the deceased was a very crucial circumstance proved against him -- Enmity between the deceased and the petitioner had also surfaced -- Corroborative evidence with regard to recovery of the weapon-axe alleged to have been used in the commission of crime from the petitioner, also substantiated the case of prosecution -- Entire oral as well as documentary evidence having been threadbare considered by the Sessions Court as also High Court while holding the petitioner guilty of the charged offence – No need again reappreciate the same in the petition under Article 136 of the Constitution of India – Special Leave Petition dismissed.

(Para 10-12)

520. (P&H HC) 08-02-2023

A. Indian Penal Code, 1860 (45 of 1860), Sections 279, 337, 338 and 304-A – Rash and negligent driving – High speed of car itself is not an offence -- Testimony that the offending car came from the opposite side and struck against the motorcycle, all witnesses clearly stated that the car was being driven at high speed -- None of them whispered even a single word as to how the car was being driven in rash or negligent manner -- Accident took place on a wide road, driving car on such road at high speed, in itself does not amount to rash or negligent driving – Conviction set aside.

(Para 7-13)

B. Indian Penal Code, 1860 (45 of 1860), Sections 279, 337, 338 and 304-A – Rash and negligent driving – Test Identification Parade (TIP) -- Apparent from the testimony of eye-witnesses projected by the prosecution i.e. PW-8, PW-9 and PW-10 that none of them saw the petitioner-accused driving the car at the spot -- Test Identification got conducted in the police station is of no relevance, as only accused was shown to PW-9 -- Identification of the accused for the first time in the Court, when the witnesses did not have the opportunity to see the face of the driver of the offending vehicle at the spot, is of no significance -- As per the FIR version, the car driver had fled from the spot after talking to ‘S’, who was occupying one of the motorcycle, prosecution gave up PW - ‘S’ for reasons best known to it -- Had ‘S’ been examined and established the identity of accused as car driver, then statement of other witnesses could have been believed that it is the accused, who was driving the car – Held, prosecution failed to establish the identity of the accused – Conviction set aside.

(Para 10-13)

C. Indian Penal Code, 1860 (45 of 1860), Sections 279, 337, 338 and 304-A – Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Rash and negligent driving – Criminal liability of owner of vehicle – Release of vehicle on superdari – Effect of -- Accused-petitioner is the registered owner of the offending car and he got the car released on superdari as owner but this in itself cannot be a reason to draw conclusion that he was driving the offending car at the relevant time -- PW-9 deposed that car was occupied by two persons and he cannot say as to who was driving the car – Ld. First Appellate Court fell in grave error by observing that as the accused was the owner of the car, so it was for him to explain u/s 106 of the Evidence Act as to who was driving his car -- Onus was on the prosecution to prove that it is the accused-petitioner, who was driving the offending car at the relevant time, which the prosecution has failed to establish -- Conviction set aside.

(Para 11-13)

523. (P&H HC) 31-01-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 146, 147 – Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 482 -- Rioting – Details in FIR – Requirement of -- Quashing of FIR -- In order to attract the provision of Section 146 or 147, basic ingredients of these offences which are force/ violence/ Criminal force/ resistance have to be explicit from the description of events in the FIR, so as to prima facie constitute the offence -- Neither, violence or any kind of use of force/ resistance, on part of the protesting persons, has been alleged even in FIR, nor has it been shown that in what manner any force/ Criminal force/ resistance was used by the accused persons -- FIR quashed.

(Para 9, 18)

B. Indian Penal Code, 1860 (45 of 1860), Section 147, 149 – Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 482 -- Rioting – Unlawful assembly -- Details in FIR – Requirement of -- Quashing of FIR -- Mere averment to the effect that accused blocked the road will not suffice to construe the use of force or violence as the same is required to be portrayed from the description of events in FIR itself – No offence u/s 147 and 149 of the IPC is made out there being no allegation of rioting or creating an unlawful assembly -- FIR quashed.

(Para 9, 18)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 154 -- Details of offence in FIR – Requirement of -- FIR cannot be the encyclopedia of all the events of the case, but at the same time, there must be description of basic actions of accused persons from which it can be prime facie construed that alleged offences were committed by accused person.

(Para 9)

D. Indian Penal Code, 1860 (45 of 1860), Section 188 – Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 195, 482 -- Disobedience to order promogulated by public servant – Quashing of FIR -- In order to constitute this offence, there must be disobedience of an order promulgated by a public servant -- Pre-requisites the Court to take cognizance of this offence only on a complaint filed by the concerned public servant – Neither there was any mention of promulgated order issued by any public servant nor any such complaint was filed at its instance, thus, applicability of Section 188 itself erroneous -- FIR quashed.

(Para 10, 18)

E. Indian Penal Code, 1860 (45 of 1860), Section 283 --  Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Blockage of road – Quashing of FIR -- No videography or photographs of alleged blockage -- Vague allegations regarding blocking of road, in the absence of any basic minimum details, does not lead to prima facie satisfaction for constituting offence u/s 283 of IPC -- FIR quashed.

(Para 10, 12, 18)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 156(3), 482 -- Constitution of India, Article 19 -- Fundamental right to protest -- Quashing of FIR u/s 482 Cr.P.C – Alternative remedy – Just because the petitioner and other accused persons could avail their remedy before the Trial Court u/s 156(3) of Cr.P.C., they could not be left in lurch to face the agony of criminal trial while exercising their fundamental right to protest.

(Para 15)

525. (P&H HC) 27-01-2023

Indian Penal Code, 1860 (45 of 1860), Section 304-B, 306 – Indian Evidence Act, 1872 (1 of 1872), Section 113-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Dowry death – Abetment to suicide – Acquittal of accused – Leave to appeal -- Presumption u/s 113-A of Indian Evidence Act -- Principles

(1) The presumption carried in the Indian Evidence Act, is attractable only when the charge drawn against the accused is for an offence punishable under Section 306 of the IPC.

(2) The said statutory provision has a limited effect, in respect of a charge drawn under Section 304-B of the IPC, as the implied presumption, created through the words “shall be deemed to have caused her death”, which hence occur at the end of the relevant statutory provisions, yet do not discharge, the prosecution from adducing evidence qua the deceased being meted cruelty or harassment, in respect of demands of dowry, as, made upon her by her husband, or by his relatives.

(3) That the statutory phrase “and it is shown” which segregates the first, and, second component of the relevant discharging section, cast a conjunctive onus, upon the prosecution to prove the earlier, and, later components' of the relevant charging sections.

(4) That the word “shall be deemed to have caused her death” do not ever discharge the prosecution from adducing evidence rather for unflinchingly proving both the components, as carried in sub-Section (1) of Section 304-B of the IPC.

(5) The evidence necessary for proving the above foundational facts, rather for supporting the ingredients, as carried in Section 304-B IPC, is required to be always adduced by the prosecution, and, the implied presumption, gets strengthened only, when the defence omits to put the relevant exculpatory suggestions to the PWs concerned, and/or fails to secure a favourable answer thereto, rather from the PWs concerned.

For the reasons assigned, no reason to interfere with the impugned verdict of acquittal, as made by the learned trial Court --Leave to appeal against the verdict of acquittal dismissed.

(Para 19, 24)

526. (P&H HC) 27-01-2023

Indian Penal Code, 1860 (45 of 1860), Section 376, 511 – Rape – Attempt to rape – Acquittal of accused -- Variant stands of prosecutrix – Evidence of offence -- Principles

1. For determining the occurrence of blatant, and, gross improvements or embellishments, made by the prosecutrix in her testification, made before the learned Court below, rather with her previously made statement in writing, a keenest perusal of both has to be made.

2. In case the prosecutrix has made variant stands, at different stages of the investigations, about the date and time of the occurrence, thereupon, such variant stands, do become the plank for making a conclusion, that the prosecutrix has made open, rife, and, blatant improvements or embellishments from her earliest recorded statement in writing.

3. In case the prosecutrix makes variant attributions of criminality to the accused respectively in her statement, recorded by the police, and, before the learned Judicial Magistrate concerned, thereupon, the said variant stands or inter se digression(s), would leave this Court to conclude, that such digression(s) are rife, and, blatant, and, thus the deposition of the prosecutrix, would be construed to be not amenable for assigning any creditworthiness thereto.

4. In case there is an attribution qua the accused that during the course of the relevant occurrence, he had broken the cord of her salwar, thereupon, it became imperative upon the investigating officer concerned, to collect the salwar as well as the broken cord thereof. Omission to make the above collections would also make deep inroads into the veracity of the genesis of the prosecution case.

For the reasons assigned, no reason to interfere with the impugned verdict of acquittal, as made by the learned trial Court -- Appeal dismissed.

(Para 1, 20, 21)

531. (P&H HC) 17-01-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 306 -- Abetment of suicide – Mens rea -- Quarrel with deceased – Spur of moment -- Words uttered in a quarrel or in the spur of a movement if at all cannot be taken to be uttered with the necessary mens rea and would be an outcome of an emotional outburst or a fit of anger -- Same would not amount to abetment.

(Para 10)

B. Indian Penal Code, 1860 (45 of 1860), Section 306 -- Abetment of suicide -- Merely having a dispute with the deceased or making a complaint to the Police against the deceased would not make out a case under Section 306 IPC.

(Para 10)

C. Indian Penal Code, 1860 (45 of 1860), Section 306 -- Abetment of suicide -- Reliance upon suicide note -- Suicide note does not refer to any act on the part of the accused amounting to abetment -- It only says that if something was to happen with the deceased, the accused would be responsible -- Suicide note therefore does not further the case of the prosecution.

(Para 10)

D. Indian Penal Code, 1860 (45 of 1860), Section 306 -- Abetment of suicide -- Author of suicide note – Proof of – FSL asked for admitted document of the deceased so as to compare the writing on the suicide note along with that of the deceased, however, no such writing was dispatched to the FSL for comparison – Brother of the deceased identified the signatures of the deceased on the suicide note which would not be sufficient to affix the authorship of the suicide note.

(Para 10)

E. Indian Penal Code, 1860 (45 of 1860), Section 306 -- Abetment of suicide -- Merely mentioning the names of the accused in the suicide note in the absence of any specific role would not lead to the commission of an offence under Section 306 IPC.

(Para 10)

533. (Delhi HC) 17-01-2023

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Cheque by company -- Vicarious liability of officer – Officer,  Non-signatory to cheque -- Pleadings as to role of Officer -- Specific averments must be made in the complaint itself highlighting the role of the said officer as to how he was either responsible for day-to-day affairs and conduct of business of the company or as to how and in what manner the officer was guilty of consent and connivance or negligence in the commission of the offence.

(Para 13)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Cheque by company -- Vicarious liability of Chief Account officer – Officer,  Non-signatory to cheque -- Pleadings as to role of Officer -- Specific averments that, the petitioner persuaded the complainant to enter into the transaction with the Company by showing the financial position of the Company as well as making them believe in the capacity of the same to repay the debts -- Complainant has fulfilled the basic criteria of carving out the role of present petitioner in the complaint, for the commission of offence u/s 138 and 141 of NI Act.

(Para 13, 14)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Cheque by company -- Vicarious liability of Chief Account officer – Company master data – Non-showing of resignation – Effect of -- In Company Master Data, the petitioner was a part of the Company on the date the alleged offence took place and when the complaint was filed before the learned Trial Court – Contentions of the petitioner that he had already resigned from the Company prior to dishonor of cheque – High Court in a petition u/s 482 Cr.P.C. cannot decide the genuineness of such records -- No case for quashing of complaint -- Petition dismissed.

(Para 15-17)

543. (P&H HC) 05-01-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 41, 439 -- Intent of arrest -- Reason of denial of bail are:

– to secure the appearance of the accused at the time of trial;

– to  allay possibility of repeating of offence & jeopardising own life on account of grim prospect of being convicted;

-- to avoid possibility of tampering of evidence and security of witnesses who may be pressurised or maltreated.

(Para 5)

B. Indian Penal Code, 1860 (45 of 1860), Section 376 (2) (N), 343, 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Constitution of India, Article 19(1), 21 -- POCSO case – Rape – Regular bail – Detention or arrest not only deprives a person from his fundamental right of personal liberty guaranteed by Article 21 but also freedom guaranteed by article 19(1) of our Constitution – Keeping in mind, the Petitioner is in custody since 27.02.2021, police report u/s 173 of Cr.P.C. stands filed and charges stand framed, prosecution stands examined as well cross-examined, out of total 24 witnesses till date 06 have been examined, thus, there is abysmally law possibility of conclusion of trial in near future, the petitioner is not involved in any other criminal case, petitioner is permanent resident of District Sirsa and have family members and prosecution has not led any convincing/plausible documentary or oral evidence indicating possibility of petitioner being flee from justice or tempering the evidences or winning over/threatening the witnesses, petitioner ordered to be released on bail.

(Para 6, 7)

548. (SC) 02-01-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 405, 406 – Criminal breach of trust -- For Section 406 of the IPC to get attracted, there must be criminal breach of trust in terms of Section 405 of the IPC -- For Section 405 of the IPC to be attracted, the following have to be established:

(a) the accused was entrusted with property, or entrusted with dominion over property;

(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and

(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion -- Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.

(Para 12-14)

B. Indian Penal Code, 1860 (45 of 1860), Section 405, 406 – Criminal breach of trust -- Complaint does not directly refer to the ingredients of Section 405 of the IPC and does not state how and in what manner, on facts, the requirements are satisfied -- Pre-summoning evidence is also lacking and suffers on this account -- If monetary demand or claim is incorrect and not payable, offence u/s 405/ 406 is not constituted.

(Para 15)

C. Indian Penal Code, 1860 (45 of 1860), Section 415, 420 -- Cheating -- In order to apply Section 420 of the IPC,  the ingredients of Section 415 of the IPC have to be satisfied -- To constitute an offence of cheating u/s 415 of the IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property -- Second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived -- Thus, the sine qua non of Section 415 of the IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating.

(Para 16)

D. Indian Penal Code, 1860 (45 of 1860), Section 420 – Cheating -- There is no assertion, much less legal evidence, to submit that accused/company had engaged in dishonesty, fraud, or intentional inducement to deliver a property -- It is not the case of respondent no. 2 - complainant that accused-company had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that accused-company had offered any fraudulent or dishonest inducement to deliver a property -- As such, ingredients of Section 415 of the IPC are not satisfied, the offence u/s 420 of the IPC is not made out.

(Para 17)

E. Indian Penal Code, 1860 (45 of 1860), Section 464,  470,  471 -- Forged document -- To constitute the offence u/s 471 of the IPC, it has to be proven that the document was “forged” in terms of Section 470, and “false” in terms of Section 464 of the IPC -- Section 470 lays down that a document is ‘forged’ if there is: (i) fraudulent or dishonest use of a document as genuine; and (ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one -- Section 470 defines a forged document as a false document made by forgery -- As per Section 464 of the IPC, a person is said to have made a ‘false document’: (i) if he has made or executed a document claiming to be someone else or authorised by someone else; (ii) if he has altered or tampered a document; or (iii) if he has obtained a document by practising deception, or from a person not in control of his senses -- Unless, the document is false and forged in terms of Sections 464 and 470 of the IPC respectively, the requirement of Section 471 of the IPC would not be met.

(Para 18)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 200, 204 -- Summoning of accused – Duty of Magistrate -- 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 -- Requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record -- He/she may even put questions to complainant and his/her witnesses when examined u/s 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.

(Para 21)

G. Code of Criminal Procedure, 1973 (2 of 1974), Section 200, 202, 204 – Summoning of accused -- 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 -- 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 -- 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 No. 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.

(Para 21, 22)

H. Code of Criminal Procedure, 1973 (2 of 1974), Section 200, 204, 482 – Indian Penal Code, 1860 (45 of 1860), Sections 405, 420, 471, 120-B – Cheating -- Criminal breach of trust – Forgery -- Summoning of accused – Quashing of complaint/ summoning order/ non-bailable warrants -- Non-bailable warrant was not issued in the name of any person but by designation against the Chief Manager JIPL – High Court, while dismissing the petition filed u/s 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 -- 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 -- 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 – Proceedings and complaint quashed.

(Para 10, 23-25)

550. (J&K&L HC) 23-12-2022

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143-A – Cheque bounce complaint – Interim compensation – Discretion of Court -- Court trying a complaint for offence u/s 138 of NI Act has discretion to order the drawer of the cheque to pay interim compensation to the complainant -- Amount of compensation has not to exceed 20% of the amount of the cheque – Held, grant of interim compensation is a discretionary power and such order has to be based on reason and logic.

(Para 9)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143-A – Cheque bounce complaint – Interim compensation – Discretion of Court -- No guidelines for grant of interim compensation have been laid down in Section 143-A of the NI Act -- it is a settled law that whenever a discretionary power is to be exercised by a Court, the same has to be exercised on well-recognized principles supported by reasons -- Court has to spell out the reasons for grant of interim compensation in favour of the complainant and it has also to justify in its order with reasons the quantum of interim compensation that is being awarded by him as the said quantum can vary from 1% to 20% of the cheque amount.

-- Some of the reasons for granting interim compensation may be that the accused absconds and avoids to appear before the Court despite service or there is overwhelming material on record to show that the accused is liable to pay an enforceable debt or that the accused is guilty of protracting the proceedings by avoiding to cross-examine the witnesses or producing his evidence.

(Para 10, 11)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 251 -- Cheque bounce complaint – Interim compensation – Discretion of court -- Reasoned order – Requirement of -- Magistrate is empowered to grant interim compensation in favour of a complainant ranging from 1% to 20% of the cheque amount -- Trial Magistrate has granted interim compensation in the maximum range of 20% without assigning any reason – Order impugned is devoid of any reasons and no discussion is made in the impugned order as to why interim compensation is being awarded – Ld. Magistrate has not dealt with the aspect of the matter relating to denial of execution of the cheque by the accused in his statement recorded u/s 251 of the Cr. P. C – Order is not sustainable in law, quashed.

(Para 14, 15)