As observed by the High Court, a criminal breach of proceeding
is defined in Section 405 of the Indian Penal Code and punishment for the same is prescribed in Section 406 thereof.
Section 405 of the Indian Penal Code reads as hereunder :-
“405. Criminal breach of trust.—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 wilfully suffers any other person so to do,
commits “criminal breach of trust”.”
The High Court rightly held that the said provision would be
attracted where the accused person had been entrusted with
property, and such property had dishonestly been misappropriated or converted by him to his own use. The provision would also be attracted if the accused person dishonestly used or disposed of such property in violation of any direction of law. The High Court rightly found that the sine qua non for attracting the said provision was the entrustment of the property with the accused persons.
In this case, the petitioners had handed over waste plastic
material to the concerned respondent and the respondent had
processed the same and made the same over to the petitioners.
S U P R E M E C O U R T O F I N D I A
Petition(s) for Special Leave to Appeal (Crl.) No(s). 5485/2021
GURUKANWARPAL KIRPAL SINGH VsvSURYA PRAKASAM & ORS.
These matters were called on for hearing today.
CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE C.T. RAVIKUMAR
Date : 12-05-2022
UPON hearing the counsel the Court made the following
O R D E R
This special leave petition is against a judgment and order
dated 28.01.2021 passed by the High Court of Judicature at Bombay
allowing Criminal Writ Petition(ST)-4298-2020 and quashing the FIR
dated 03.03.2020 in exercise of the power under Section 482 of the
Criminal Procedure Code for having committed offences under Section
285, 406, 420 and 427 read with Section 34 of the Indian Penal Code
(IPC).
The Respondent Nos. 1 to 4 are the Directors of M/s Ramkey
Reclamation and Recycling Private Limited, a company within the
meaning of the Companies Act, 2013 engaged in the business of
environment management services and hereinafter referred to as the
“Company”.
The company has floated a tender inviting bids for recycling
of plastics. The petitioner submitted his bid through his company
M/s JK Waste Recycling Private Limited. It is not necessary to set
out the terms and conditions of the tender. Suffice it so note
that the petitioner lodged an FIR against Respondent Nos. 1 to 4
making the allegations set out hereinbelow for convenience :-
“1, Gurkanwarpal Kirpal Singh, Age 68 years, Occupation
Company-Director, R/o 3 Monarchy Palace Orchid NIBM Road,
Undri, Pune, Mob. No. 8805025200, give statement in person
in Khandala Police Station that I live along with family at
the above-said place. We have a Plant for manufacturing
paralysis oil by recycling the plastic in our Company –
J.K. Waste Recycling Pvt. Limited and for that we receive
waste plastic material from different companies and it is
processed in our company. In the Month of June 2019 Satish
Chetty and Surya prakashan. Managers of Ramky Reclamation
and Recycling Pvt. Ltd. Hyderabad, Telangana State,
contacted our company through email and informed to give us
order for recycling of waste material in their company for
which you will have to first conduct testing of our
material in your company and if it is conducted well, we
will purchase three plants from you. As the said Company
is a reputed Company we believed them and informed them our
consent by email for conducting recycling test. At that
time I came to know to the above mentioned representatives
of the said company. Then after, in the Month of September
2019 the company sent its representatives Animesh Roy and
Vyankatesh and six ton material plastic composite material
for conducting testing of the said material. Then after,
Director of our Company Kanwaljit Singh after talking to
representatives of the said Company decided to conduct the
said testing into two phases of three tons each. Animesh
Roy and Vyankatesh conducted testing of the said material
on dt. 15/09/2019 and dt. 19/09/2019 and sent report to
Ramky Company. Then after, Ramky Company sent email to our
company and informed that the testing conducted in your
company is successful and we are satisfied regarding it,
however, we have to conduct one more testing; and believing
them we showed our readiness for conducting third testing
also. Then after, again in the month of (October 2019
Ramky Company sent its plastic composite material and its
representatives Animesh Roy and Vyankatesh for testing. At
that time our Director Kanwaljit, looking at their material
told them that this material is wet and has smell of
different type and this material seems different than the
earlier material. To this they told not to worry of it and
believe us. Believing on them testing process of the said
material began in our Plant on dt. 11/10/2019. At that
tune, nut of the plant machinery came out and pipe began to
crank and by formation of different kinds of acids, vacuum
purnp, condenser, reactor oil tank got brokedown and failed
to work and to avoid fire in the Company because of it, we
stopped the said process and therefore loss of lives and
damage to the Company was averted. In the said recycling
test, as our Company sustained a loss of about Rs.
62,00,000/- when we contacted Ramky Company by email and
informed them of the incident that took place, they
informed us to come to Hyderabad to find out some way and
so myself and my wife Sou Kanwaljit Singh went to Hyderabad
and met Satish Shetty G Rameshwar and Suryaprakashan of
Ramky Company and asked for the damages and compensation of
the testings. They gave us evasive replies saying that our
company is not at fault and we had sent our representatives
then, after returning back, we time and again tried to
contact them by email and over telephone but they have not
responded to our emails or phone calls. Then after we sent
the composite material sent to us for testing received dt.
24/11/2019 it was concluded that there was hazardous and
injurious sulfuric chemicals in the said material. We
informed Ramky Company about the said report by email, but
they did not respond to us of any kind and from this we
came to know that above mentioned representatives and
Director of Ramky Company have cheated us after inducing us
to believe then u then after taking legal advice and
thinking over it, I have come today to lodge a complaint.
Therefore, during the month of June 2019 to dt. 11/10/2019
in our Company J.K. Waste Recycling Pvt. Ltd., within the
limits of village Ghatdare, Tal. Khandala I) Satish Chetty
2) Suryaprakashan, 3) Aminesh Roy, 4) Vyankatesh all R/o
Ramky Pvt. Ltd., Hyderabad, Telangana State, have
successfully got conducted testing of first two phases of
good quality material on the pretext of giving our Company
order of recycling and also of purchasing three Plants from
us and induced us to trust them and despite of having a
knowledge that the third phase testing composite material
contains injurious and hazadous and volatile sulfuric
chemicals and it causes damages and injury to any living
being by acting negligently conducted the testing of that
material in our Plant and thereby vacuum pump. Condenser,
reactor oil tank of our recycling plant got damaged and
broke-down and sustained damages of about Rs. 62,00,000/-
to us and cheated us and therefore, I have complaint
against them, I have read my statement typed on computer
and after verification of it being true as told by I signed
it. Signed this statement before Police Station Officer,
Khandala Police Station.”
The High Court after hearing the contentions of the respective
parties proceeded to examine whether the materials on record
indicated that ingredients of the offences alleged against the
petitioners had even prima-facie been made out. The High Court
referred to the judgment of this Court in State of Haryana vs.
Bhajan Lal reported in (1992) Supp. 1 SCC 335, wherein this Court
considered the circumstances in which power to quash an FIR could
be exercised. The relevant portion of the said judgment is
extracted hereinbelow :-
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we give
the following categories of cases by way of illustration wherein
such power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines
or rigid formulae and to give an exhaustive list of myriad kinds
of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an
order of a Magistrate as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal
grudge.”
As observed by the High Court, a criminal breach of proceeding
is defined in Section 405 of the Indian Penal Code and punishment
for the same is prescribed in Section 406 thereof.
Section 405 of the Indian Penal Code reads as hereunder :-
“405. Criminal breach of trust.—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 wilfully suffers any other person so to do,
commits “criminal breach of trust”.”
The High Court rightly held that the said provision would be
attracted where the accused person had been entrusted with
property, and such property had dishonestly been misappropriated or
converted by him to his own use. The provision would also be
attracted if the accused person dishonestly used or disposed of
such property in violation of any direction of law. The High Court
rightly found that the sine qua non for attracting the said
provision was the entrustment of the property with the accused
persons.
In this case, the petitioners had handed over waste plastic
material to the concerned respondent and the respondent had
processed the same and made the same over to the petitioners.
The High Court also referred to the definition of cheating in
Sections 416 and 420 of the Indian Penal Code, which read as
hereunder :-
“416. Cheating by personation.—A person is said to “cheat by
personation” if he cheats by pretending to be some other person,
or by knowingly substituting one person for or another, or
representing that he or any other person is a person other than
he or such other person really is.
7
420. Cheating and dishonestly inducing delivery of property.—
Whoever cheats and thereby dishonestly induces the person
deceived to deliver any property to any person, or to make,
alter or destroy the whole or any part of a valuable security,
or anything which is signed or sealed, and which is capable of
being converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine”
The High Court found that the operative words and the
essential ingredients of the offence of cheating are deception on
the part of the accused or dishonest inducement by them, resulting
in any person delivering any property to such accused or alteration
or destruction of whole or any part of valuable security.
Referring to the judgment of this Court in Dalip Kaur & Ors.
vs. Jagnar Singh & Ors. reported in (2009) 14 SCC 696, the Court
found that even prima-facie the basic ingredients of offence of
cheating were absent.
The High Court further held that the essential requirement of
Section 285 of IPC was that the accused must have done something
with fire or any combustible matter in a rash and negligent manner
to endanger human life.
The FIR in the present case does not show anything done by the
accused with fire or any combustible matter. The act of recycling
plastic waste material or supply of plastic waste material for
recycling by the Petitioner No. 2 could not be said to be an act
done with fire or any combustible matter.
The act of the respondents of supplying material for testing
8
and the recycling plant could not be said to be a negligent or rash
act done to endanger human life. Thus, the essential ingredients
of the offence were absent.
In our considered opinion, the well reasoned and well
considered judgment of the High Court does not call for
interference, more so, when the High Court has made it clear that
the order would not come in the way of the Respondent No. 2 in
instituting any civil proceedings against the petitioner in respect
of any grievance, if permissible in law, which would then be
considered and decided in accordance with law.
The special leave petition is, therefore, dismissed.
Pending applications, if any, shall stand disposed of.
(MANISH ISSRANI) (MATHEW ABRAHAM)
COURT MASTER (SH) COURT MASTER (NSH)
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