Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J.  allowed a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) by the accused who were charged with the offences of criminal breach of trust, forgery and criminal conspiracy under Sections 406, 466, 467, 471 and 120B of Penal Code, 1860 (hereinafter ‘IPC’).

In the instant case, the partition of a family property took place and a part of the common property was set aside for conducting certain divine and charitable acts. This property was to be managed by the eldest member of the family as a trustee. First petitioner, who was the member of the family managed the aforementioned property as a trustee for the other members of the family since 1970. In order to grab this property, the first petitioner entered into a conspiracy with the Village Officer and forged the public register substituted his name as the owner of the property. Thereafter, the first petitioner gifted the aforesaid property to the second petitioner, his daughter. Execution of this settlement deed was in violation of the provisions contained in the partition deed. Thus, petitioners had committed the offences punishable under Sections 406, 466, 467, 471 and 120B of IPC.

K. Gopalakrishna Kurup, learned counsel for the petitioners argued that it was doubtful that immovable property can be the subject matter of the offence of criminal breach of trust. He also contended that the affirmations in the complaint did not clarify the offences alleged against the petitioners.

The learned counsel for complainants, Alex M. Scaria contended that the court must take into consideration each of the allegations made in the complaint as accurate to determine if the ingredients of the offences alleged were made out or not.

Reliance was laid upon R.K. Dalmia v. Delhi Admn., AIR 1962 SC 1821 to observe that the term ‘Property’ under Section 405 of IPC was not restricted to ‘movable’ property. Therefore, the immovable property can also be the subject matter of commission of an offence of criminal breach of trust. The Court noted that there was an absence of any averment in the complaint regarding entrustment of property in question. With such absence, one of the basic ingredients of the offence of criminal breach of trust was not made out against the accused.

Moreover, the Court cited Ramesh Dutt v. State of Punjab, (2009) 15 SCC 429 to observe that the execution of the settlement deed by the first petitioner in favor of his daughter did not constitute the offence of forgery. Furthermore, the Court held that an attempt was made by the complainant to showcase a matter of civil nature, as a matter of criminal nature. In these circumstances, the first information report, which was based on the complaint, was liable to be quashed. Consequently, the petition was allowed.[Damodara Panicker v. State Of Kerala, 2019 SCC OnLine Ker 1789, decided on 06-06-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of T.V. Anil Kumar, J., while pronouncing an order quashed the criminal proceedings stating them to be of a civil dispute.

The facts of the case as presented in the present case are that, the prosecution case as against the petitioner is that, he after having obtained a mobile post-paid connection in his name, failed to discharge his liability for user charges for a period of 5 months. Allegation was that petitioner incurred a monetary liability of Rs 97,678 and after making a part payment of Rs 10, 580 he kept the balance in arrears. According to the prosecution, the default amounts to an offence of cheating punishable under Section 420 IPC.

Petitioner’s case is made out in the following manner, that the transaction in question is based on an agreement between the parties which turns the alleged liability to be purely of civil nature, due to which the petitioner sought consequential criminal proceedings to be quashed.

High Court on marshalling the materials on record, concluded by stating that, the transaction involved between the parties is of a civil dispute as a purported liability of the petitioner seems to have been arisen from breach of promise or agreement.

“Mere breach of trust or agreement will not by itself amount to a criminal offence under Section 420 IPC.”

Therefore, as the legal proposition does not match the materials on record as well as the allegations, the criminal proceedings require to be quashed in view of the above stated. [Abdul Hakkem v. State of Kerala, 2019 SCC OnLine Ker 974, Order dated 08-03-2019] 

Case BriefsSupreme Court

Supreme Court: In the matter where the Court was deciding the question as to whether disciplinary proceedings can be initiated before the closure of recording of prosecution evidence in the criminal case, based on the same facts, the bench of T.S. Thakur, CJ and A.M. Khanwilkar, JJ held that the pendency of the criminal case cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period.

In the present case, the criminal trial against the respondent was pending for around 10 years and the Chhattisgarh High Court had stayed the disciplinary proceedings initiated by the appellant bank until the completion of the same based on the reasoning that the respondent may suffer disadvantage and prejudice if she was compelled to disclose her defence in the departmental proceedings, which is likely to be used in the criminal case pending against her. Disagreeing with the aforementioned view of the High Court, the Court said that It is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis.

In one of the clauses of the Memorandum of Settlement it was mentioned that “if within the pendency of the proceedings thus instituted is put on trial such proceedings shall be stayed pending the completion of the trial.” The Court said that the term “completion of the trial” thereat, must be construed as completion of the trial within a reasonable time frame. This clause cannot come to the aid of the delinquent employee – who has been named as an accused in a criminal case and more so is party to prolongation of the trial.

Pendency of criminal trial for around 10 years, by no means, can be said to be a reasonable time frame to withhold the disciplinary proceedings. The Court took this view on the principle underlying the former part of the same clause, which envisages that if the Authority which has to start the prosecution refuses/fails to do so within one year from the commission of the offence, the departmental action can proceed. The Court, hence, held that the remedy of writ being an equitable jurisdiction and keeping in mind the larger public interests especially in cases of involvement of the employees of the Public Sector Banks in offence of breach of trust and embezzlement, the principle laid down in Stanzen Toyotetsu India Private Limited vs. Girish V., (2014) 3 SCC 636, where it was held that the departmental proceedings cannot be suspended indefinitely or delayed unduly, should be applied. [State Bank of India v. Neelam Nag, 2016 SCC OnLine SC 946, decided on 16.09.2016]