Whether Use Of Deceased Brother's SIM Card amounts to An Offence of Criminal breach of trust and cheating?

Merely because the sim-card of real brother was used by the sister i.e. the present petitioner, that by itself will not constitute or amount to commission of the offence. The fact remains that to infer misuse of sim-card by the petitioner, there is no iota of evidence to infer such act. It is an admitted fact that the sim-card is duly received by the complainant from the petitioner before the date of lodging of the complaint. {Para 7}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.1871 OF 2022

Heena Afrin Huzaifa Shaikh Vs The State of Maharashtra & Anr. 

CORAM : NITIN W. SAMBRE & R. N. LADDHA, JJ.

DATE : 17th AUGUST, 2023

1. The present petitioner is sister of deceased Ashfaque.

The deceased Ashfaque expired on 23rd April, 2020 having suffered

covid infection. Complainant Mrs. Rumana, wife of deceased

Ashfaque on 2nd October, 2020, lodged a complaint alleging that the

petitioner along with other co-accused with common intention

committed an offence of criminal breach of trust and cheating. The

nature of allegations are, while the complainant was following

Iddat, she has instructed Afsar Shah to dispose of movables which

were owned by her and her husband jointly. Sale proceeds of the

same were not handed over to the complainant. As far as the

petitioner is concerned, allegations are, taking illegal custody of the

postpaid sim-card and use of the same and handing it over to the

complainant after having blocked the same. Contentions of counsel

for the petitioner are, even if the prosecution case is presumed to be

true at its face value, as has been stated in the FIR, no offence could

be inferred against the petitioner. According to him, only role

attributed to the petitioner is that of taking custody (illegally) of the

sim-card of deceased, using the same, which was subsequently

found to be blocked.

2. It is further claimed that as far as non return of the sale

proceeds after disposal of movables is concerned, there are no

specific attributions against the petitioner to infer the alleged

offence under Section 406 viz. Criminal breach of trust and Section

420 viz. Cheating. Counsel for the petitioner would urge that

neither the property was entrusted to the petitioner by the

complainant viz. movables, as reflected in the FIR nor the petitioner

is said to be instrumental in disposal of the property i.e. movables.

He would draw support from the contents of the FIR and submits

that even the sim-card was returned to the complainant before the

date of lodging of the complaint. In this background, it is claimed

that necessary ingredients of offence punishable under Sections 406,

420 and 34 of IPC cannot be inferred.

3. Learned counsel for the complainant assisted by learned

APP would urge that the offence is committed by the petitioner at

two stages; (i) that she having common intention with the other co-

accused instrumental in disposing of the movables and not returning

the amount of sale proceeds to the complainant; and (ii) illegal use

of sim-card and returning the same which was found to be blocked.

It is claimed that there is prima-facie evidence to infer involvement

of the petitioner in the offence in question.

4. The offence alleged against the petitioner taking custody

of sim-card of deceased, use of same as could be noticed from the

contents of the FIR. As far as the sale of movables, like Air

Conditioners, Oven, Refrigerator, Fibre Chimney, Fibre Gas, Heater

and Sofa-cum-bed etc. is concerned, the petitioner is not shown to

be personally involved in disposal of the said property. It is upon

instructions of the complainant, Afsar Shah, brother of the deceased

Ashfaque and brother-in-law of the complainant appears to have

sold the said movables and the involvement of the present petitioner

in the said transactions is not demonstrated or alleged.

5. In this background, as far as sale of movables is

concerned, no role is attributed nor could be inferred as that of the

petitioner in the commission of said offence.

6. As far as use of sim-card is concerned, the fact remains

that after the death of Ashfaque, who was brother of the petitioner,

the sim-card was allegedly used by the petitioner and subsequent

thereof handed over to the complainant. The respondent/

complainant in categorical terms admitted the receipt of the sim-

card, however, same is claimed to be blocked.

7. Merely because the sim-card of real brother was used by

the sister i.e. the present petitioner, that by itself will not constitute

or amount to commission of the offence. The fact remains that to

infer misuse of sim-card by the petitioner, there is no iota of

evidence to infer such act. It is an admitted fact that the sim-card is

duly received by the complainant from the petitioner before the date

of lodging of the complaint.

8. In this background, having regard to the fact that an

offence punishable under Section 34 of the IPC cannot be termed as

an independent offence and having regard to aforesaid

observations, ingredients of the offence punishable under Sections

406 and 420 of the IPC cannot be inferred against the petitioner.

That being so, we deem it appropriate to allow the present petition

thereby quashing FIR and consequential charge-sheet registered

against the petitioner.

9. In State of Karnataka Vs. M. Devendrappa reported in

(2002) 3 SCC 89, the Apex Court has held that the authority of the

Court exists for advancement of justice and if any attempt is made

to abuse that authority so as to produce injustice, the Court has

power to prevent abuse. It is also held that in aforesaid situation,

the Court can be said to be justified to quash the proceedings, if it

finds that initiation/continuance of it amounts to abuse of process of

court or quashing of these proceedings would otherwise serve the

ends of justice. Paragraph 6 of the aforesaid judgment reads thus :-

“6......All courts, whether civil or criminal possess, in the

absence of any express provision, as inherent in their

constitution, all such powers as are necessary to do the

right and to undo a wrong in course of administration of

justice on the principle quando lex aliquid alicui concedit,

concedere videtur et id sine quo res ipsae esse non potest

(when the law gives a person anything it gives him that

without which it cannot exist). While exercising powers

under the section, the court does not function as a court of

appeal or revision. Inherent jurisdiction under the section

though wide has to be exercised sparingly, carefully and

with caution and only when such exercise is justified by the

tests specifically laid down in the section itself. It is to be

exercised ex debito justitiae to do real and substantial

justice for the administration of which alone courts exist.

Authority of the court exists for advancement of justice and

if any attempt is made to abuse that authority so as to

produce injustice, the court has power to prevent abuse. It

would be an abuse of process of the court to allow any

action which would result in injustice and prevent

promotion of justice. In exercise of the powers court would

be justified to quash any proceeding if it finds that

initiation/continuance of it amounts to abuse of the process

of court or quashing of these proceedings would otherwise

serve the ends of justice. When no offence is disclosed by

the complaint, the court may examine the question of fact.

When a complaint is sought to be quashed, it is permissible

to look into the materials to assess what the complainant

has alleged and whether any offence is made out even if the

allegations are accepted in toto.”

10. Apart from above, if we draw support from the judgment

of Apex Court in the matter of State of Haryana Vs. Bhajan Lal

reported in 1992 Suppl. (1) SCC 335, what can be noticed is, the

narration in the FIR, in our opinion, does not constitute any offence

against the petitioner. Once the FIR does not disclose any offence

against the petitioner, the continuance of the criminal proceedings

against the petitioner who is a doctor would amount to abuse of

process. Prima-facie, it appears that the criminal proceedings are

initiated by the complainant against the petitioner solely out of

family differences as could be inferred from the relationship

between the complainant and the petitioner.

11. As such, the present petition stands allowed in terms of

prayer clause (a).

[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.]

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