Simon Mao Vs the State of Assam and Anr.

For the Petitioner : Mr. A. Lal, Advocate. For the Respondent: Mr. D.P. Goswami, Addl. P.P., Assam. Date of Hearing : 05.03.2025. Date of Judgment : 13.03.2025.

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JUDGMENT AND ORDER (CAV)

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Heard Mr. A. Lal, learned counsel appearing for the petitioner. Also heard Mr. D.P. Goswami, the learned Addl. Public Prosecutor, Assam.

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2. This is an application under Section 397, 401 of the Criminal Procedure Code read with Section 482 of the said Code challenging the order dated 08.01.2024 passed by the learned Judicial Magistrate First Class, Kamrup (M) at Guwahati in PRC Case No.1484/2018 whereby the charges under Sections 420/406 and 511 of the Indian Penal Code were framed against the present petitioner.

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3. On 26.06.2016, the Respondent No.2 had lodged an FIR before police stating that he had secret information that two persons were roaming near Hatigaon Chariali for printing fake currency notes. Accordingly, the Respondent No.2 informed the Officer-in-Charge of Hatigaon Police Station. G.D. Entry was made and the Respondent No.2 along with three constables namely, Samrat Das, Muzamil Ali and Rajab Ali started to patrol that area. Those two persons namely, Sabir Hussain and Md. Kurban Ali were detained and brought to the police station.

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4. During investigation, the Respondent No.2 came to know from the said two persons that they had kept a bundle of 1000 rupee currency notes and 500 rupee fake currency notes in a shop at Fatasil Ambari. Sabir Hussain and Md. Kurban Ali had told the Respondent No.2 that they came to Hatigaon area to look for a printing machine for printing fake currency notes.

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5. The Respondent No.2 immediately went to Katabari and as informed those two persons, searched the shop of Md. Abdul Hussain. The Respondent No.2 discovered four numbers of 1000 rupee currency notes in black colour and 2 numbers of 500 rupee notes in black colour. Apart from that, 4 numbers of black & white fake currency notes were also recovered.

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6. Police registered the case being Hatigaon P.S. Case No.274/2016 under Section

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489(C), 489(D) of the Indian Penal Code.

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7. The seized currency notes were sent to the Forensic Science Laboratory for examination. The Forensic Science Laboratory gave a report on 06.01.2017. The report goes like this –

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a) It has not been possible to express a definite opinion on bank notes of denominations ₹500 bearing marking Q2 and Q3 as some chemical substances may be used over the notes, so it is difficult to observe all the features of a genuine of Indian bank note of ₹500.

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b) Physical examination of black colour sheets stamped and marked Q1, Q4 to Q6 reveals imprints and various design of letters including features which are found in genuine bank notes of ₹1000 and ₹100 and the size of the sheets are approximately match with the size of a genuine Indian bank note of ₹1000 and ₹100/-. However, for a definite opinion on bank notes/sheets bearing marking Q1 to Q6 may be sent to the Bank Note Press, Dewas, Madhya Pradesh.

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c) The black and grey sheets bearing marking Q7 to Q10 (size 15.06 cm X 6.6 cm approximately in three sheets) and (16.5 cm X 7.4 cm approximately in one sheet) are the common black and grey paper without any print.

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8. During the period of investigation, the said Sabir Hussain disclosed that the present petitioner was their associate. It was also discovered that Sabir Hussain and Mohammad Kurban Ali had always used the personal car of the present petitioner.

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9. On conclusion of investigation, police field the charge sheet against the present petitioner along with Sabir Hussain and Mohammad Kurban Ali under Sections 420/406 of the Indian Penal Code read with Section 511 of the said Code.

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10. The petitioner pleaded before the trial court that nothing was recovered from

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him. He was roped into this case only on the basis of the statement of another person. The petitioner further argued before the trial court that the Forensic Science Laboratory failed to hold the seized currency notes to be fake Indian currency notes. The petitioner had relied upon the decision of the Hon’ble Supreme Court in Haricharan Kurmi versus State of Bihar, reported in AIR 1964 SC 1184. In the said judgment, the Supreme Court has held that confession cannot be treated as evidence which is substantive evidence against a co-accused person.

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11. However, the trial court framed the charges under Sections 406 and 420 of the Indian Penal Code read with Section 511 of the said Code against the present petitioner.

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12. I have considered the submissions made by the learned counsel of both sides.

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13. At this stage, a brief visit of Sections 405 and 415 of the Indian Penal Code would be fruitful, which is reproduced as under:

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“ 405. Criminal breach of trust.—

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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”. Explanation 1.— A person, being an employer of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law

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as aforesaid. Explanation 2.— A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.

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415. Cheating.—

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Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

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14. A plain reading of Section 405 of the IPC reveals that whoever, being in any manner entrusted with any property, dishonestly misappropriates or converts to his own use that property commits breach of trust.

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15. Similarly, Section 415 of the IPC states that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything he would not do or omit if he were not so deceived is said to have cheated.

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16. In this case, police recovered some currency notes suspected to be fake Indian currency notes. The Forensic Science Laboratory could not establish that those currency notes were fake currency notes.

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17. Now, the question arises what property was entrusted with the petitioner?

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In fact there are no materials in this case to suggest that any property was

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entrusted to the present petitioner. So, there cannot be question of misappropriation of property.

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18. Who was deceived by the present petitioner?

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During Investigation, it was found that the so called fake currency notes were actually not fake currency notes. There are no materials in this case to show that any particular person would not have committed any offence if the petitioner had not deceived them.

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19. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraph 102 of the judgment reads as under:

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“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.

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(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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(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.

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(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.

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(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.

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(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.

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(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.

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(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.”

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20. Coming back to the case in hand, this Court has sufficient reason to hold that in this case there is no possibility of conviction of the present petitioner. The learned trial court while framing the charges against the present petitioner failed to apply judicial mind. Therefore, allowing the criminal proceeding against the present petitioner to continue before the trial would be nothing but an abuse of the process of the court.

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21. For the aforesaid reasons, the impugned order dated 08.01.2024 passed by the learned Judicial Magistrate First Class, Kamrup (M) at Guwahati in PRC Case No.1484/2018 whereby the charges under Sections 420/406 and 511 of the Indian Penal Code were framed against the present petitioner Sri Simon Mao, is required to be set aside.

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22. In the result, the criminal proceeding of PRC Case No.1484/2018 whereby the charges under Sections 420/406 and 511 of the Indian Penal Code were framed against the present petitioner Sri Simon Mao, is quashed and set aside.

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The Criminal Petition is accordingly allowed and disposed of.

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JUDGE

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Simon Mao v. the State of Assam and Anr.

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