Harmanpreet Singh Ahluwalia v. State of Punjab, (SC) BS190773
SUPREME COURT OF INDIA

Before:- S.B. Sinha and Dr. Mukundakam Sharma, JJ.

Criminal Appeal No. 908 of 2009 [Arising out of SLP (Criminal) No. 1793 of 2008]. D/d. 5.5.2009.

Harmanpreet Singh Ahluwalia and Others - Appellants

Versus

State of Punjab and Others - Respondents

NUTSHELL

Larger part of offence committed in Canada - FIR lodged at Jalandhar - FIR quashed, inter alia on this ground.

A. Criminal Procedure Code, Section 482 - Indian Penal Code, Section 420 and 406 Criminal Procedure Code Section 178 - Territorial jurisdiction - Parties married at Jalandhar thereafter living in Canada - Demand of dowry made in Canada - FIR lodged at Jalandhar - FIR quashed, inter alia, on the ground that larger part of offence was committed in Canada.

[Para 12]

B. Criminal Procedure Code, Sections 240, 227 and 228 - Indian Penal Code, Section 420 and 406 - Criminal Procedure Code, Section 482 - FIR under Section 420, 406 Indian Penal Code - Police conducted inquiry and recommendation cancellation of FIR - Recommendation not accepted, but charge sheet submitted - No evidence to show on what material charge sheet was submitted - FIR quashed.

[Paras 8 and 14]

C. Criminal Procedure Code, Section 178 - Criminal Procedure Code, Section 482 - Indian Penal Code, Section 420 and 406 - Territorial jurisdiction - Larger part of offence committed in Canada - FIR under Sections 406 and 420 lodged at Jalandhar where marriage was solemnized - FIR quashed, inter alia, on this and following grounds :-

[Paras 14 and 8]

D. Indian Penal Code, Section 379 - Indian Penal Code, Section 406 - Certain articles were in joint possession of husband and wife - Husband leaving the house with some articles - No offence of theft made out.

[Para 14]

E. Indian Penal Code, Sections 406 and 405 - Criminal breach of trust - Ingredients of offence are as under :-

1. Entrusting any person with property or with any dominion over property.

2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation -

[Para 11]

F. Indian Penal Code, Sections 415 and 420 - Mens rea - Cheating - For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out - Further held :-

A guilty intention is an essential ingredient of the offence of cheating. In other words "mens rea" on the part of the accused must be established before he can be convicted of an offence of cheating. 2003(3) RCR (Criminal) 273 : 2004(1) Apex Crl. 274 (SC) relied.

[Paras 12 and 13]

G. Dowry Prohibition Act, Sections 3 and 14 - Indian Penal Code, Section 406 - Dowry articles given to bride at the time of marriage - It does not amount to entrustment thereof to husband on behalf of bride.

[Para 10]

Cases Referred :-

State of Karnataka v. M. Devendrappa, 2002(1) RCR (Criminal) 480 : [2002(3) SCC 89].

Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305].

Raghubir Saran (Dr) v. State of Bihar [AIR 1964 Supreme Court 1].

R. Kalyani v. Janak C. Mehta [(2009)1 SCC 516].

State of Haryana v. Bhajan Lal, 1993(1) RCR (Criminal) 383 : [1992 Supp (1) SCC 335].

Ajay Mitra v. State of M.P., 2003(1) RCR (Criminal) 674 : (2003)3 SCC 11.

Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 Supreme Court 575].

Mahadeo Prasad v. State of W. B. [AIR 1954 Supreme Court 724].

Hira Lal Hari Lal Bhagwati v. CBI, 2003(3) RCR (Criminal) 273 : 2004(1) Apex Criminal 274 : [(2003)5 SCC 257].

Indian Oil Corporation v. NEPC India Ltd., 2006(3) RCR (Criminal) 740 : 2006(2) Apex Criminal 637 : [(2006)6 SCC 736].

Vir Prakash Sharma v. Anil Kumar Agarwal, 2007(3) RCR (Criminal) 960 : 2007(4) RAJ 254 : (2007)7 SCC 373.

All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain [2007(12) SCALE 391].

Sharon Michael v. State of Tamil Nadu, 2009(1) RCR (Criminal) 759 : 2009(1) RAJ 484 : [2009(1) SCALE 627].

V.Y. Jose v. State of Gujarat, 2009(1) RCR (Criminal) 869 : 2009(1) RAJ 543 : [2008 (16) SCALE 167].

Hira Lal v. State of U.P. [2009(5) SCALE 418].

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Appellants are before us aggrieved by and dissatisfied with a judgment and order dated 13.12.2007 passed by a learned single judge of the Punjab and Haryana High Court in Criminal Miscellaneous No. M-40020 of 2007 dismissing an application praying for quashing FIR No. 141 dated 30.5.2006 under section 406/420 of the Indian Penal Code (for short, "Indian Penal Code") in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure (for short, "the Code")

3. The basic fact of the matter is not in dispute.

However, differences between them were sorted out and respondent No. 3 affirmed an affidavit on or about 30.9.2003 admitting her mistake, stating :

On or about 5.2.2006, parents of appellant No. 1 visited Canada as appellant No. 2 developed a heart problem.

Disputes and differences again arose between the parties in the year 2006 as a result whereof they started living separately with effect from 29.3.2006.

It is only thereafter, the father of the respondent No. 3, namely Inter Pal Singh, a retired Police Inspector and permanent resident of Canada, while on a trip to India, lodged a complaint against the appellants under section 406/420 Indian Penal Code on or about 21.4.2006 along with an affidavit of respondent No. 3 inter alia alleging that the appellants demanded dowry and misappropriated the dowry articles.

It was furthermore alleged :

In view of separation between appellant No. 1 and respondent No. 3, appellant filed a second divorce petition on or about 1.5.2006 in the Superior Court of Brampton, Ontario seeking divorce and custody of the child.

Indisputably, an FIR bearing No. 141 dated 30.5.2006 was registered under section 406/420 Indian Penal Code at Division No. 4, Jalandhar.

The Superintendent of Police, Jalandhar made an enquiry with regard to the aforementioned matter. He submitted a report on or about 30.3.2007, the concluding portion whereof reads as under :

He made recommendations for cancellation of the said suit/case, stating :

4. However, despite the same, a charge-sheet was issued. In the mean time, divorce application filed by the appellant in Canada, were allowed by the Ontario Superior Court of Justice by its order dated 19.10.2007.

On receipt of the summons, appellants filed an application under section 482 of the Code which by reason of the impugned judgment has been dismissed.

5. Mr. Rajiv K. Garg, learned counsel appearing on behalf of the appellants would submit :

6. Mr. Vineet Dhanda, learned counsel appearing on behalf of the respondent, on the other hand, urged :

7. The allegations made in the FIR show that the appellant Nos. 2 and 3 could go to Canada on joint sponsorship of the appellant No. 1 as also the respondent No. 3. It is only at Canada that alleged demand of a sum of Rs. 5 lakhs was made on the premise that they intended to buy some property. In the FIR, it was alleged that she left her residence for attending her duties at about 0630 hrs in the morning on 29.3.2006 leaving behind her husband as also two kids aged 5 and 9 years. However, when she returned home around 1700 hrs, she found some articles missing. She was admittedly informed by the concerned police officers telephonically as regards the filing of divorce petition by the appellant and, thus, she should not bother him anymore. It is only thereafter the first informant Inder Pal Singh came to India and lodged the FIR. He is a retired police officer. In his report, he alleged:

8. Parties admittedly live at Ontario in Canada. Offence, if any, had been committed in Canada. FIR, however, has been lodged at Jalandhar only after the divorce application was filed. No allegation has been made in the FIR that appellants at the time of marriage or thereafter demanded any dowry. The demand of a sum of Rs. 5 lakhs allegedly was made only in Canada and that too after the appellant Nos. 2 and 3 arrived in Canada in March 2006, i.e., almost after a period of five years from the date of marriage. We have noticed hereinbefore the opinion of the Superintendent of Police. He recommended 'cancellation' of the FIR for one reason or the other. However, the said recommendation had not been accepted. A charge-sheet has been filed.

9. Mr. Dhanda submits that the jurisdiction of a High Court under section 482 of the Code should be used in exceptional cases and very sparingly. According to the learned counsel, allegation of mala fide against the first informant cannot be a ground for quashing a criminal proceeding after a charge-sheet has been filed. Strong reliance in this behalf has been placed on State of Karnataka v. M. Devendrappa, 2002(1) RCR (Criminal) 480 : [2002(3) SCC 89].

In the aforesaid judgment, this Court was considering a case of quashing of a criminal proceeding for commission of offence punishable under Section 465, 468, 471 and 420 read with Section 120B of the Indian Penal Code. Respondents therein were excise officials. This Court held :

Recently in R. Kalyani v. Janak C. Mehta & Ors. [(2009)1 SCC 516], this Court opined :

We must, however, also notice that in State of Haryana & Ors. v. Bhajan Lal, 1993(1) RCR (Criminal) 383 : [1992 Supp (1) SCC 335], this Court inter alia laid down the law in the following terms :

Sub-Para (7) of the said Para reads as under :

Does this case come within the purview of the aforementioned dicta is the question.

10. Parties were married in May 2000. Disputes between the parties arose for the first time in the year 2003. Respondent No. 3, however, on an application filed by the appellant No. 1 apprehending danger to his life, categorically admitted her fault and guilt. Even at that point of time no allegations of cheating and/or non-return of the Stridhan were made. It is only after a period of three years when the disputes and differences between the parties wrecked up once again and on filing of an application for divorce, the father of the respondent No.3 came from Canada to Jalandhar to lodge FIR. The facts pleaded in the application for quashing of FIR before the High Court are not denied or disputed. In fact, most of the documents relied on by the appellant are annexed to the counter affidavit filed on behalf of the respondent No.3 herself. We, therefore, do not have to consider any document which the appellant intends to place before us by way of defence. It is also not a case where this court has to undertake a difficult task of appreciating the evidence brought on record by the parties.

Mr. Dhanda's submission that the marriage between the appellant No.1 and respondent No. 3 was solemnized only for the purpose of getting the family settled at Canada is far fetched. For the purpose of constituting an offence for criminal breach of trust and/or cheating, the ingredients thereof as contained in Section 405 and 415 respectively must be borne out from the records.

11. Criminal breach of trust is defined in Section 405 of Indian Penal Code. The ingredients of an offence of the criminal breach of trust are :

Section 415 of the Indian Penal Code defines cheating as under :

An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied :

12. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.

13. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.

In Ajay Mitra v. State of M.P., 2003(1) RCR (Criminal) 674 : (2003)3 SCC 11, this Court held :

Cheating has been defined in Section 415 Indian Penal Code and it says that :

In Hira Lal Hari Lal Bhagwati v. CBI, 2003(3) RCR (Criminal) 273 : 2004(1) Apex Criminal 274 : [(2003)5 SCC 257], this Court held :

The said principle has been reiterated in All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr. [2007(12) SCALE 391], stating :

14. It is, therefore, evident that the element of wrongful intention should ordinarily exist from the inception of the contract. FIR does not satisfy the aforementioned test. So far as the allegation in regard to criminal breach of trust is concerned, it related to the dowry articles. No allegation has been made that the appellants are guilty of commission of offence punishable under Section 3 and/or 4 of the Dowry Prohibition Act. If any dowry has been given, the same would attract the provisions of the special act in preference to the general statute. Furthermore, if any article is given by way of dowry, the question of entrustment thereof for or on behalf of the bride would not arise.

Allegations made in the FIR merely disclose that at the time of leaving the house, appellants had taken with them certain articles. The said articles ought to be in lawful possession of the respondent No. 3. The offence of theft might have been committed. But when they are in joint possession, even no offence of theft would also be made out.

Furthermore, the larger part of offence, if any, has been committed only in Canada. Why the father of respondent No. 3 had to come from Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent No. 3 and the first informant do not say that the inquiry report submitted by the Superintendent of Police on the representation made by the appellant No. 2 was incorrect. It has also not been stated that as to on what material, the charge-sheet had been submitted. We, in the peculiar facts and circumstances of this case, have absolutely no doubt in our mind that the allegations contained in the FIR had been made with an ulterior motive to harass the appellants. Continuance of the criminal proceeding against them would, therefore, amount to abuse of process of the court.

In All Carogo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr. [2007(12) SCALE 391], this Court held :

{See also V.Y. Jose & Anr. v. State of Gujarat & Anr., 2009(1) RCR (Criminal) 869 : 2009(1) RAJ 543 : [2008 (16) SCALE 167]}

In Hira Lal & Ors. v. State of U.P. & Ors. [2009(5) SCALE 418], this Court held:

15. Upon taking a holistic view of the matter vis-a-vis the statutory provisions, we are of the opinion that the appellants had made out an exceptional case to invoke the inherent jurisdiction of the High Court under section 482 of the Code. It was, in our opinion, obligatory on the part of the High Court to exercise its discretionary jurisdiction to prevent the abuse of process of the court.

16. For the aforementioned reasons, the impugned judgment and order of the High Court is set aside. The appeal is allowed.

Appeal allowed.