MR. ROBERT JOHN D'SOUZA AND OTHERSversusMR. STEPHEN V. GOMESANDANOTHER

                         (2015] 8 S.C.R. 662


A          MR. ROBERT JOHN D'SOUZA AND OTHERS
                                   v.
            MR. STEPHEN V. GOMESANDANOTHER
                 (Criminal Appeal No. 953 of 2015)
B                           JULY21, 2015
          [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

        Code of Criminal Procedure, 1973 - s.482 - Criminal
c   proceedings u/ss. 406, 409 and 420 rlw s. 34 IPC - Quashing
    of- Held: In view of the facts of the case, none of the offences
    for which the appellants-accused were summoned, were
    made out from the complaint and material on record - It is
    abuse ofprocess of law by the complainant- Therefore, the
o   criminal proceedings are liable to be quashed- Penal Code,
    1860-ss.406, 409 and 420 rlw s.34.

        Allowing the appeal, the Court

       HELD: 1. It is also not disputed that the sale deeds
E in question were executed way back in the year 1996
  and the complainant, who is not even member of the
  Society, raises the issue that the sale deeds were
  executed for the benefit of the Directors of the Society,
F after a long gap of more than twelve years. Sale deeds
  in question are registered, and not declared null and void
  by any court of law. Admittedly earlier a complaint was
  made by the complainant which was got investigated
  by the police and the result of the investigation was that
G no offence was found committed by the appellants on
  the ground that the dispute is of civil in nature. In view of
  the these facts, apparent on the record, the High Court
  and the courts below have committed grave error of law

H                                662
       MR. ROBERT JOHN D'SOUZA AND ORS. v. MR.               663
             STEPHEN V. GOMESANDANR.

in ignoring the same. [Paras 7-8] [668-A-D]                   A

     2. To constitute an offence punishable under Section
406 IPC, the essential ingredient is the "entrustment" of
the property. The complaint filed by the complainant
nowhere discloses that the land in question purchased B
in the year 1978 was entrusted to the Society for the
benefit of others. It is only after entrustment is shown, it·
can be said that there was criminal breach of trust. [para
8] [668-D-F]

    Ram Narayan Popli v. Central Bureau of Investigation
                                                              c
                   =
2003 (1) SCR 119 2003 (3) SCC 641; State ofGujaratv.
                                  =
Jaswantlal Nathalal 1968 AIR 700 19.68 SCR·. 408 - relied
on.
                                                            D
     3.ln the present case, even if the allegations made
in the complaint are taken to be true, the ingredients of
the offence punishable under Section 409 IPC for which
appellants are summoned, are also not made out. To
constitute an offence punishable under Section 409 IPC, E
apart from entrustment, it is also essential requirement
that it should be shown that the accused has acted in
the capacity of a public servant, banker, merchant, factor,
broker, attorney or agent. It is nowhere shown in the
complaint that the appellants have acted in any of the F
above capacities. [para 11] [669-B-D]

    4. From the language of Section 415 IPC, one of the
essential ingredients for the offence of cheating is
deception, but in the present case, from the contents of G
the complaint it nowhere reflects that the complainant
was deceived or he or anyone else was induc.ed to deliver
the property by deception. [para 13] [670-A-B]

      5. None of the offences for which the appellants are    H
664         SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A summoned, is made out from the complaint and material
  on record. It is nothing but abuse of process of law on
  the part of the complainant to implicate the appellants in
  a criminal case after a period of twelve years of execution
  of registered sale deeds in question, who is neither party
B to the sale deeds nor a member of the Society.
  Accordingly, the order passed by the Magistrate
  summoning the appellants in the criminal complaint filed
  by respondent No. 1, in respect of offences punishable
  under Sections 406, 409 and 420 IPC, also stands
C quashed. [para 17] [672-C-E]

       Mathavrao Jiwajirao Scindia and others v. Sambhajirao
  Chandrojirao AtJgre and others 1988 (2) SCR 930 = 1988
  (1) SCC 692; Suresh v. Mahadevappa Shivappa Danannava
D and another2005 (2) SCR 131=2005 (3) SCC 670; lnder
  Mohan Goswami and another v. State of Uttaranchal and
  others 2007 (1 O) SCR 847 = 2007 (12) sec 1 - Relied on.

                        Case Law Reference
E
           2003 (1) SCR 119            relied on       para 9

           1968 SCR 408                relied on       para 10

           1988 (2) SCR 930            relied on       para 14
F
           2005 (2) SCR 131            relied on       para 15

           2007 (10) SCR 847           relied on       para 16

      CRIMINALAPPELLATE JURISDICTION: CriminalAppeal
G No. 953 Of2015.

          From· the Judgment and Order dated 09.10.2014 of the
      High Court of Karnataka at Bangalore in Crl. P. No. 658 of
      2014.
H
     MR. ROBERT JOHN D'SOUZA AND ORS. v. MR.                        665
           STEPHEN V. GOMES AND ANR.

     S. N. Bhat, fortheAppellants.                                   A

    Santosh Paul, Arvind Gupta, Shubham Aggarwal, Arti
Singh for the Respondents.               ·

    The Judgment of the Court was delivered by
                                                                     B
      PRAFULLA C. PANT, J. -1. This appeal is directed
.against.order dated 9.10.2014, passed by the High Court.of
 Karnataka at Bangalore in Criminal Petition No. 658 of 2014
 whereby said court has dismissed the petition, and declined
to quash the Criminal Complaint case No. 357 of 2012, filed C
 by respondent No. 1, against the appellants.

     2. Brief facts of the case are that a Society named -
 Mukka Welfare Society was constituted on 28.3.1970 for
 charitable work and social service, registered under Karnataka      D
 Societies Registration Act, 1970. ~pellant No. 1, appellant
 No. 2 and appellant No. 3 were President, Secretc.ry and
Treasurer respectively, while appellant Nos. 4 to 7 were
 Directors of the Society. Other appellants are their relatives.
A piece of land bearing S. No. 239/10 measuring 0.50 acres           E
in Village Suratkal, Taluk Mangalore, was purchased by the
 Society vide registered sale deed dated 28.1.1978 from one
Smt. Kaveri Hengsu. It is alleged by the complainant
(respondent No. 1) that appellant Nos. 1 to 7, being members         F
of the Executive and Directors of Mukka Welfare Society,
misusing the position, held Board Meetings on 22. 9.1995 and
13.10.1995 facilitating the sale of the above mentioned land
in favour of their relatives (appellant Nos. 7 to 12). The sale
deeds were executed on 16.2.1996. It is further stated that          G
the purchasers (appellant Nos. 7 to 12), executed sale deeds
in the same year in favour of the Directors of the Society. It is
alleged by the complainant/respondent No.1 that the
appellants have fraudulently usurped the property through the
sale deeds mentioned above, and thereby committed                    H·
666            SUPREME COURT REPORTS                   [2015) 8 S.C.R.


A     cheating.

       3. The criminal complaint filed by respondent No. 1 was
  registered by the 1st Additional Senior Civil Judge and Chief
  Judicial Magistrate, Mangalore, DK, who, after recording the
B statement of the complainant under Section 200 of the Code
  of Criminal Procedure, 1973 (for short "CrPC"), summoned
  th_e appellants vide order dated 13.4.2012 in respect of
  offences punishable under Sections 406, 409, 420 read with
  Section 34 of Indian Penal Code (IPC). The appellants filed
C Criminal Revision Petition No. 58 of 2012 before the Principal
  Sessions & District Judge of D.K. District at Mangalore, which
  was dismissed vide order dated 6.2.2013. Thereafter, the
  appellants filed a petition under Section 482 CrPC before the
  High Court and the same was also dismissed. Hence this
D appeal through special leave.

          4. We have heard learned counsel for the parties and
      perused the papers on record.

E          5. The impugned orders passed by the High Court and
      the other authorities below are challenged before us mainly
      on the following grounds: -

        (i)     Respondent No. 1/complainant is not a member of the
               "Mukka Welfare Society" nor is he in any manner
F
               connected with the affairs of the Society, as such he
               has no locus to file the criminal complaint.

        (ii)    The sale deeds in question were executed in the year
               1996, and the criminal complaint is filed malafide by
G              respondent No. 1 after a period of fourteen years, in the
               year 2010, as such the courts below have erred in law
               in not taking note of said fact..

       (iii) The courts below have erred in law in not appreciating
H            that the complaint in question was filed to get personal
   MR. ROBERT JOHN D'SOUZA AND ORS. v. MR.   667
STEPHENV. GOMESANDANR. [PRAFULLAC. PANT, J.]

        vendetta by respondent No. 1 against the Directors of A
        the Society.

  (iv) The courts below further erred in not considering the
       fact that the complainant/respondent No. 1 had earlier
       filed a complaint, with same set of facts, before the B
       Deputy Commissioner,Dakshin Kannada, Mangalore,
       and the same was sent to Police Station Suratkal for
       investigation, and the Circle Inspector, after
       investigation, did not find any offence to have been
       committed by the appellants, as the dispute was purely C
       of civil in nature.
                                                               I.
  (v)   Ingredients of the offences punishable under Sections
        406, 409 and 420 IPC are not made out.
                                                .              ..
  (vi) None of the transactions of sale in question is agairr$t      D
       any bye-law or clause of Memorandum of .b.ssociation
       of the Society.

      6. In the counter affidavit filed on behalf of respondent No.1,
it has been stated that the complainant came to know of the E
transactions of sale, only in the year 2009, whereafter he
complained before the Deputy Commissioner, D.K., as such
the issue raised as to delay in filing the complaint is unfounded.
It is further stated that the Mukka Welfare Society receives
donations from various institutions and general public. The F
allegation of personal vendetta, pleaded in the appeal by the
appellants, has been denied in the counter affidavit. Lastly,
defending the orders passed by the courts below, it is stated
that the courts below have committed no error of law.                 G
     7. Arguments were advanced by learned counsel for the
parties on the above lines pleaded before us. Having
considered the submissions of the learned counsel for the
parties what is apparent in the present case is that the            H
668             SUPREME COURT REPORTS                   [2015] 8 S.C.R.



A complainant is not the member of Mukka Welfare Society. It
      is also not disputed that the sale deeds in question were
      executed way back in the year 1996 and the complainant, who
      is not even member of the Society, raises the issue that the
      sale deeds were executed for the benefit of the Directors of
8
      the Society, after a long gap of more than twelve years. Sale
      deeds in question are registered, and not declared null and
      void by any court of law. It is also relevant to mention here that
      admittedly earlier a complaint was made by the complainant
c     to the Deputy Commissioner in the year 2009, which was got
      investigated by the police and the result of the investigation
      was that no offence was found committed by the appellants on
      the ground that the dispute is of civil in nature .
                    •
          . 8: In view of the above facts, apparent on the record, we
0
      are of the view that the High Court and the courts below have
      committed grave error of law in ignoring the same. Needless
      to say that to constitute an offence punishable under Section
      406 IPC, the essential ingredient is the "entrustment" of the
E     property. The cornplaint filed by the complainant nowhere
      discloses that the land in question purchased in the year 1978
      was entrusted to the Society for the benefit of others. It is only
      after entrustment is shown, it can be said that there was
      criminal breach of trust.
F         9. In Ram Narayan Pop/i v. Central Bureau of
      lnvestigation 1, this Court, per majority, has explained
      "entrustment" in paragraph 363 as under: -

              "The term "entrustment" is not necessarily a term of law.
G             It may have different implications in differentcontexts. In
              its most general signification all it imports is the handing
              over possession for some purpose which may not imply
              the conferring of any proprietary right at all."
H     1
          c2003) 3 sec 641
        MR. ROBERT JOHN D'SOUZA AND ORS. v. MR.    669
     STEPHEN V. GOMESANDANR. [PRAFULLAC. PANT, J.)

      10. In State ofGujaratv. Jaswantlal Nathala/2, this Court A
 in paragraph 8 has observed that a mere transaction of sale
 cannot amo.unt to an entrustment.

       11. At this stage we also think it proper to observe that in
  the present case, even if the allegations made in the complaint B
  are taken to be true, the ingredients of the offence punishable
  under Section 409 IPC fofwhich appellants are summoned,
  are also not made out. To constitute an offence punishable
  under Section 409 IPC, apart from entrustment, it is also
  essential requirement that it should be shown that the accused C
  has acted in the capacity of a public servant, banker, merchant,
  factor, broker, attorney or agent. It is nowhere shown in the
  complaint that the appellants have acted in any of the above
  capacities..                                                .,,
                                                                    D
       12.As far as offence of cheating is concerned, the same
· is defined in Section 415 IPC, for which the punishment is
  provided under Section 420 IPC. Section 415 reads as under:-

          "415. Cheating. -Whoever, by deceiving any person, E
          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 F
          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".

          Explanation. - A dishonest concealment of facts is a G


          Illustrations             "
                                        ..
          deception within the meaning of this section .



 2
     AIR 1968 SC 700                                              H
670          SUPREME COURT REPORTS                   [2015]8 S.C.R .

                                            •
A      13. From the above language of the Section, one of the
  essential ingredients for the offence of cheating is deception,
  but in the present case, from the contents of the complaint it
  nowhere refl!lcts that the complainant was deceived or he or
  anyone else was induced to deliver the property by deception.
B What was done, was so reflected in the resolutions, and sale
  deeds.

           14. In Mathavrao Jiwajirao Scindia and others v.
  Sambhajirao Chandrojirao Angre and others3, a three-
C Judge Bench of this Court has laid down the law as to
  quashment of proceedings under Section 482 CrPC as
  follows:-

            "7. The legal position is well settled that when a
D           prosecution at the initial stage is asked to be quashed,
            the test to be applied by the court is as to whether the
            uncontroverted allegations as made prima facie establish
            the offence. It is also fo"r the court to take into
            consideration any special features which appear in a
E           particular case to consider whether it is expedient and
            in the interest of justice to permit a prosecution to
            continue. This is so on the basis that the court cannot be
            utilised for any oblique purpose and where in the opinion
            of the court chances of an ultimate conviction is bleak
F           and, therefore, no useful purpose is likely to be served
            by allowing a criminal prosecution to continue, the court
            may while taking into consideration the special facts of
            a case also quash the proceeding even though it may
            be at a preliminary stage."
G
           15. In Suresh v. Mahadevappa Shivappa Danannava
      and another', criminal prosecution was quashed by the Court

      ' (1988) 1 sec 692
H • (2005) 3 sec 670
     MR. ROBERT JOHN D'SOUZA AND ORS. v. MR.   671
  STEPHENV. GOMESANDANR. [PRAFULLAC. PANT, J.]

 in respect offence of cheating noticing that the complaint was A
 filed after a lapse of ten years.

      16. In lnder Mohan Goswami and anotherv. State of
. Uttaranchal and others 5, this Court in paragraphs 25 and
  46 has observed as under: -                               B

       "25. Reference to the following cases would reveal that
       the courts have consistently taken the view thqt they must
       use ttiis extraordinary power to prevent injustice and
       secure the ends of justice. The English courts have also  c
       used inherent power to achieve the same objective .. It is
       generally agreed that the Crown Court has inherent     "'
       power to protect its process from abuse. In Connelly v.
       OPP (1964 AC 1254) Lord Devlin stated that where
       particular criminal proceedings constitute an abuse of D
       process, the court is empowered to refuse to allow the
       indictment to proceed to trial. Lord Salmon in OPP v.
       Humphrys (1977 AC 1) stressed the importance of the
       inherent power when he observed that it is only if the
       prosecution amounts to an abuse of the process of the E
       court and is oppressive and vexatious that the judge has
       the power to intervene. He further mentioned that the
       court's power to prevent such abuse is of great
       constitutional importance and should be jealously
       preserved.                                                 F

                 xxx         xxx                  xxx
       46. The court must ensure that criminal prosecution is
       not used as an instrument of harassment or for seeking G
       private vendetta or with an ulterior motive to pressurise
       the accused. On analysis of the aforementioned cases,
       we are of the opinion that it is neither possible nor

 • c2001) 12 sec 1                                               H
672          SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A           desirable to lay down an inflexible rule that would govern
            the exercise of inherent jurisdiction. Inherent jurisdiction
            of the High Courts under Section 482 CrPC though wide
             has to be exercised sparingly, carefully and with caution
            and only when it is justified by the tests specifically laid
B           down in the statute itself and in the aforementioned
            cases. In view of the settled legal position, the impugned
            judgment cannot be sustained."

       17. In view of the above discussion and facts and
C circumstances of the case, we are of the view that none of the
  offences for which the appellants are summoned, is made out
  from the complaint and material on record. We further find
  that it is nothing but abuse of process of law on the part of the
  complainant to implicate the appellants in a criminal case after
D a period of twelve years of execution of registered sale deeds
  in question, who is neither party to the sale deeds nor a
  member of the Society. Therefore, we allow the appeal and
  set aside the orders passed by the High Court and that of ttie
  courts below. Accordingly, the order passed by the Magistrate
E summoning the appellants in the criminal complaint filed by
  respondent No. 1, in respect of offences punishable under
  Sections 406, 409 and 420 IPC, also stands quashed.

      Kalpana K. Tripathy                               Appeal allowed.