Petitioners challenged registration of FIR alleging criminal conspiracy and cheating for siphoning warehouse materials. Court held FIR failed to disclose basic ingredients of offences against petitioners due to lack of alleged agreement, quashing the FIR as filed.
FIR was quashed as far as it relates to the petitioners.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO.50 OF 2007.
| 1. | Man Mohan Thapar | |
|---|---|---|
| S/o Late Karam Chanda Thapar R/o. Thapar Farm,Chatlarpur, Maroli, New Delhi, India |
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| 2. | Prem Krishan Sehgal S/o Krishan Sehgal, R/o. C-66, Panchasheel Enclave, New Delhi. |
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| 3. | Mrs.Tiny Kesang Thapar, wife of Man Mohan Thapar R/o. Thapar Farm, Chatlarpur, Maroli, New Delhi. ....... |
. Petitioners |
| Versus | ||
| 1. | The State of Goa Through, the Secretary, Ministry of Home, Panaji Goa. |
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| 2. | The Officer In charge, Police Station, South Zone, Margaon, Goa. |
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| 3. | Ramesh @ Ramdas S/o. Pappa Naidu,R/o. Krishna Colony, Coimbator**(deleted as per-** order dated.29.2.2008. ) |
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| 4. | Orbit Syntex Limited, 81, Near Mariban Apartments, Aquam Atto, Margaon, Goa. ....... |
. Respondents |
| Mr. petit |
Sudin Usgaonkar with Ms Rajani Kamat, ioners. |
Advocates for the |
Mr. N. N. Sardessai, Advocate for the respondent No.4.
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Ms W.Coutinho, Public Prosecutor for the respondent Nos. 1 & 2.
Coram :- R.M.S.KHANDEPARKAR, J.
Date : - 07th March, 2008.
ORAL JUDGMENT :
forthwith.
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agency has also added the offence of Section 420 of I.P.C. on 11.11.2007 to the said F.I.R.
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could not have been registered at Margaon. He has further submitted that proviso of Section 188 of Cr.P.C. requires the previous sanction of the Central Government which admittedly has not been taken by the respondent and hence, the registration of F.I.R. is bad in law.
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in the matter of siphoning of materials and causing loss to the complainant in connivance with the employee of the complainant company and, therefore, the allegations made in the complaint sufficiently disclose necessary ingredients of Section 408 r/w. 120B of I.P.C. as far as the involvement of the petitioners are concerned and hence, there is no case for quashing the F.I.R.. Further drawing my attention specifically to para. 103 of the judgment of the Apex Court in Bhajanlal's case, he submitted that the veracity or truthfulness of the allegations in the complaint are not to be gone into at the stage of challenge to the F.I.R. and that has to be left to the investigating agency to establish the same in the course of trial. The attention was also sought to be drawn to the decision of the Apex Court in the matter of E.K. Chandrasenan Versus State of Kerala, reported in (1995)2 SCC 99, while contending that the complaint sufficiently discloses the basic ingredients of section 120B of I.P.C.
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terms of the said memorandum, the petitioners were required to purchase the goods as and when required for the manufacture of their product. In other words, the warehouse was to be utilised by the complainant Company for storing certain raw-materials which could be used by the petitioners for their final product. However, such goods were required to be procured by the petitioner on payment of the price thereof. Pursuant to the grant of lease in respect of the warehouse, the complainant had appointed its employee by name Ramdas Naidu s/o. of Pappu Naidu, resident of Krishna Colony, Coimbatore to have control of the goods in the said warehouse. The said Ramdas was in physical control and custody of goods in the warehouse. He was also responsible for supply of such goods from the said warehouse at Malaysia to the Company of the petitioners, but the same was to be done on written instructions given to him by way of delivery challans and said Ramdas was required to submit regular accounts of such goods to the head office of the complainant Company at Aquem Alto, Margaon, Goa. The complainant company used to receive raw-materials from various Companies, used to store the same in the warehouse which was under the control of said Ramdas and whenever there has to be order placed by the petitioner's Company, the goods were supplied to the petitioner by following the procedure as stated above. Accordingly, the goods were supplied to the petitioner's Company as and when the orders were received and the amount was paid under Challan. Since July 2007 said
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Ramdas failed to report to his duties and in spite of several attempts to get in touch with him the same proved to be futile. As the conduct of Ramdas appeared to be of suspicious nature, the complainant Company on 10.10.2007 deputed one Mr. P.M. Rajan to inspect the stocks at the warehouse at Malaysia and on taking necessary inspection of the stocks and on necessary enquiry, it was found that said Ramdas had siphoned the materials worth Rs.2 Crores 32 Lacs from the said warehouse without receiving any instruction from the complainant Company and without any payment being received to the complainant Company in respect of the said materials and all these acts were done in connivance with the petitioners. The complainant Company tried to verify the information received by the Rajan by contacting Ramdas as well as the petitioners, however, there was no co-operation from the petitioners. Based on these allegation, the complaint came to be filed on 11.11.2007 at Margaon Police Station and accordingly, the impugned F.I.R. came to be registered.
“whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of
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either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 405 of I.P.C. defines the criminal breach of trust and provides that
“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 willfully suffers any other person so to do, commits “criminal breach of trust.”
The entrustment of property and misuse thereof to the detriment of the
interest of the person entrusting are the basic ingredient of Section 405 of I.P.C. The additional factor U/s. 408, I.P.C. is that such entrustment must be to the employee of the complainant.
“whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.”
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Section 120A defines the criminal conspiracy and it provides that
“when two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The explanation to said section provides it is immaterial whether the illegal act is ultimate object of such agreement, or is merely incidental to that object.”
Apparently agreement to commit an illegal act or an act by an illegal means are the basic ingredients of the offence of criminal conspiracy.
“ On enquiries by Mr. Rajan it was revealed that Mr. Ramdas in connivance with Mr. Man Mohan Thapar, Mr. Prem Krishan Sehgal and Mrs. Tiny Kesang Thapar siphoned the said materials from the warehouse, without receiving any instructions from Orbit Syntex Ltd., and without Orbit Syntex Ltd. receiving any payment towards the same.”
“On receiving information from Mr. Rajan, I tried to verify the said information from Mr. Ramdas, Mr. Man Mohan Thapar, Mr. Prem Krishan Sehgal and Mrs.
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Tiny Kesang Thapar. However, they gave evasive reply and refused to co-operate with me.”
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which it can be inferred that the petitioners or anyone of them had acted in connivance with Ramdas in the alleged act of siphoning of the materials from the warehouse by the latter. Being so, the basic ingredients of Section 120B which relates to the agreement between the accused persons to commit an illegal act or the act by illegal means is totally missing in the entire complaint. There are no allegations independently against the petitioners or any one of them of committing the offence of the nature of criminal breach of trust.
10. Section 420 of I.P.C. reads thus,
“ 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. ”
In order to attract this provision, it is not necessary that there has to be inducement to person who is deceived to deliver some property to some other person, or to alter or destroy the whole or any part of valuable security. As already seen above, the allegations against the petitioners relate to alleged connivance in siphoning of the goods from the
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warehouse by Ramdas. Even as far as Ramdas is concerned, whether the case stands U/s. 420 of I.P.C. or not is not clear at this stage nor it is required to be considered. However, considering the basic ingredients of the cheating and dishonest inducement which are required to be satisfied for proceeding against a person U/s.420 of I.P.C. are not at all disclosed from the averments in the complaint, it can hardly be stated that the investigating agency was justified in registering the F.I.R. U/s.420 of I.P.C. against the accused persons.
“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.
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any offence and make out a case against the accused.
Obviously, therefore, if the allegations in the F.I.R. and materials accompanying such reports do not disclose the basic ingredients of the offence for which the F.I.R. is sought to be registered, such a F.I.R. would not satisfy the provisions of Section 154 of the Code of Criminal Procedure and would not justify the investigation against the person
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named as accused person for the alleged offence. Undoubtedly, at the same time, if there are allegations disclosing the basic ingredients of any cognizable offence in such first information report, then it would not be permissible for the Court to ascertain the truthfulness or genuineness of such allegations while dealing with the challenge to the said report.
“We also give a note of caution to the effect that the power of quashing a criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”
As already observed above, when prima facie basic ingredients of a cognizable offence are disclosed in the FIR, the question of interfering therein cannot arise and that is what has been cautioned to the Courts while laying down the law regarding the
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requirements, which the F.I.R. has to satisfy in order to comply with the mandate of Section 154 of Cr.P.C. The para 103 quoted hereinabove nowhere provides that the Court is totally forbidden from interfering with an F.I.R. even though it does not disclose the basic ingredients of the cognizable offence.
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is settled law by catena of decisions of the Apex Court and of this Court. Considering the view that I am taking in the matter, it is not necessary to deal with the second submission which is sought to be raised in the matter regarding Section 188 of Cr.P.C. For the reasons stated above, the impugned F.I.R. as far as it relates to the petitioners' case is concerned, cannot be sustained and is liable to be quashed.
R.M.S.KHANDEPARKAR, J.
SMA
2 issues framed by the court
Whether an FIR disclosing only allegations of connivance by petitioners with a servant in siphoning materials sufficiently reveals the basic ingredients of criminal breach of trust, criminal conspirac
Whether allegations in the FIR against petitioners constitute a cognizable offence justifying investigation under Section 154 Cr.P.C.
Colour shows how this judgement treated each authority
State of Haryana and Others Versus Bhajanlal and othersApplied¶15
State of Haryana and Others Versus Bhajanlal and others, reported in 1992 Supp(1) Supreme Court Cases, 335
E.K. Chandrasenan Versus State of KeralaDistinguished¶13
E.K. Chandrasenan Versus State of Kerala, reported in (1995)2 SCC 99, · Who else cites this
Man Mohan Thapar
Prem Krishan Sehgal
Mrs. Tiny Kesang Thapar
The State of Goa
Orbit Syntex Limited
R.M.S.KHANDEPARKAR
As recorded by the court registry
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