Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Sonu Agnihotri, Additional Sessions Judge – 03, addressed a matter, wherein a wife using improper means procured the information of bank accounts of father-in-law and mother-in-law but it was noted that her intention was not dishonest.

A criminal revision under Section 397/399 of the Code of Criminal Procedure was preferred by the accused against the impugned order passed by the Metropolitan Magistrate whereby the order of framing of charge under Section 72A of the IT Act and Section 409 of Penal Code, 1860 was passed against the accused.

Complainants were the father-in-law and mother-in-law of the petitioner and due to issues between their son and daughter-in-law, the son left the company of his wife and started living at his matrimonial home.

Petitioner had filed a complaint under Section 12 of the PWDV Act against the son of the complainant wherein she sought maintenance from her husband.

It was stated that 12 Court proceedings have been pending between the petitioner and son of the complainants with regard to matrimonial disputes.

Vide the impugned order, the charge had been ordered to be framed against the petitioner under Section 72A of the IT Act and Section 409 of Penal Code, 1860

Analysis, Law and Decision

Section 72 A of the Information Technology Act provides as:

Punishment for disclosure of information in breach of lawful contract. -Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 409 IPC:

Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Further, Section 405 IPC defines Criminal Breach of Trust.

Whether Section 72 of the IT Act will be attracted in the present case?

Petitioner was the daughter-in-law of the complainants who was working with ICICI Bank and as per the case of prosecution, petitioner while misusing her position accessed bank accounts and FDR details of complainants with ICICI Bank and used the said details in an application filed before MM in a complaint filed by her under provisions of Domestic Violence Act.

Complainants further alleged that the petitioner in connivance with ICICI Bank jeopardized the safety and security of property and person of the complainants who were senior citizens.

Though the allegations were against both the petitioner and ICICI Bank, surprisingly, the charge-sheet was silent about any investigation made qua role of higher officials of ICICI Bank.

In Court’s opinion, without proceeding against ICICI Bank was obligated to maintain secrecy regarding the financial information of the complainants, the petitioner could not have solely proceeded.

It was noted that the petitioner used her ID to access the financial information of the complainants.

High Court expressed that,

Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.

 In view of the above observation, the petitioner’s act did not fall within the definition of wrongful gain or wrongful loss as defined under Section 23 of the Penal Code, 1860.

The second limb of ingredients of an offence under Section 72 A of the IT Act was that the petitioner was in breach of lawful contract divulged financial information of complainants to any other person.

Bench stated that, breach of lawful contract if any was made by ICICI Bank and not by the petitioner directly. So, the act of the petitioner does not satisfy the ingredients of the offence under Section 72A of the IT Act.

With respect to framing of charge under Section 409 IPC is concerned, the commission of a criminal breach of trust by the banker is a must.

As per Section 405 IPC, it requires entrustment of property or with any dominion over property coupled with dishonest misappropriation or conversion to one’s use that property or disposal of the property in violation of the direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied which the person has made touching discharge of such trust or willfully suffers any other person so to do.

In the instant case, the petitioner was not directly entrusted with property which was bank accounts and FDR information pertaining to complainants. Hence no dishonest misappropriation or conversion to petitioner’s use of the information pertaining to complainants bank accounts by use of same in judicial proceedings, as by bringing the said information before the Court she wanted to bring before the conduct of complainants’ son

There can not be said to be any dishonest use or disposal of information pertaining to bank accounts of complainants and their FDRs.

Therefore, in view of the above discussion, it was noted that the trial court failed to meet the parameters of the law and required the impugned order to be set aside. [Chavi Anurag Goyal v. State, Criminal Revision No. 19 of 2021, decided on 24-2-2022]

Case BriefsSupreme Court

Supreme Court: Answering the “hotly debated” question as to in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC, the bench of Indu Malhotra* and Ajay Rastogi, JJ has held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court

“… the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

The Court observed that in order to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

“The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.”

The Court was dealing with a case where a property, belonging to 2nd Respondent was mortgaged with State Bank of Patiala and the total legal liability payable to the Bank was Rs. 18 crores. In order to clear the said dues, 2nd respondent hatched a conspiracy with a broker so as to cheat and defraud the appellants/complainants and to further misappropriate the amounts paid by the complainants as part of the deal, the 2nd respondent breached the trust of the appellants/complainants deliberately and falsely stating to the appellants/complainants that the 2nd respondent would be liable to pay a sum of Rs. 25.50 crores to the complainant if the deal is not carried forward by the 2nd respondent.

While an FIR was lodged in the case at hand for offence of cheating, arbitral proceedings were also initiated at the instance of the appellants/complainants.

On a careful reading of the complaint/FIR/charge-sheet, the Court noticed that the ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet.

“… whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.”

The Court noticed that the facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings.

The Court, hence, held that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances,

(i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and

(ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants.

The Court held that both the alleged circumstances noticed by the High Court are unsustainable in law.

[Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206, decided on 10.03.2021]

*Judgment by: Justice Indu Malhotra

Appearances before the Court by:

For appellants: Senior Advocate Mukul Rohatgi,

For Second Respondent: Senior Advocate P. Chidambaram,

For State: Additional Solicitor General  Aishwarya Bhati

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare PC, Preethi Padman Surasena and E. A. G. R. Amarasekara, JJ., partly allowed an appeal that was filed in order to seek answer to the question whether the sentence imposed on the accused-appellant-appellant was excessive.

The accused had been convicted for the offence of Criminal Breach of Trust in a sum of Rs 527,496.00, punishable under Section 391 of the Penal Code. Upon conviction, the accused has been imposed with a sentence of a term of 5 years rigorous imprisonment and in addition a fine of Rs. 700,000.00 was also imposed, which carried a default sentence of 21 months rigorous imprisonment. Aggrieved by the conviction and sentence, the accused had appealed to the Court of Appeal but the Court of Appeal dismissed the appeal. Thus, the instant appeal was filed.

The Counsel for the appellant, Mr Faisz Musthapha PC with Kamran Aziz and Ershan Ariyaratnam contended that 30 years have elapsed since the date of the offence, and it was highly inappropriate to incarcerate a person who has had a clean life since then after the lapse of such a long period. It was also submitted that the accused was incarcerated for a period of 8 months consequent to the conviction and sentence by the High Court before he was released on bail, pending the appeal by the Court of Appeal. The attention of the court was also drawn to the deteriorating medical condition of the accused.

The Court while party allowing the appeal observed that financial fraud was committed by the accused when he was placed in a position of trust in the capacity of the Accounts Executive by his employer. Thus, setting aside the sentence imposed by High Court, the Court modified and reduced the sentence and fine. [State v. Udugamaralalage Walter Mendis, 2020 SCC OnLine SL SC 6, decided on 11-09-2020]

Suchita Shukla, Editorial Assistant has put this story together

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Recently, the Court decided an appeal against the acquittal by a Sessions Court in Tripura which had set aside the conviction recorded by the Magistrate Court in a criminal misappropriation case under Sections 408 and 468 IPC. While hearing the appeal, the Court examined the Police Report on which the Magistrate took cognizance as well as the evidences and witnesses examined by the trial court Judges.

The Court while examining the documents relied upon (for alleged embezzlement of funds) by the Magistrate to convict the accused-respondent noticed that they were not specifically proved which was sufficiently noticed by the Sessions Court as well. Counsel for the respondent submitted that police took about eight years in submitting charge-sheet and thereafter it took another four years in concluding the trial before the Magistrate and that the accused had been subjected to harassment because of such long delay in the investigation and trial stating that that the charges framed against the accused were vague and the prosecution utterly failed to prove the charges and hence the order of acquittal should not be disturbed.

The Court observed that the fundamental principle of criminal justice is that an accused should be tried with an initial presumption of innocence and burden absolutely lies on the prosecution to prove the charges framed against the accused which can’t be shifted. Also, the Court further stated that that if two views on the basis of the evidence are reasonably possible the High Court should not interfere in an order of acquittal recorded by the trial court or by the appellate court and in an appeal under Section 378  CrPC or under proviso to Section 372  CrPC, the High Court has full power to review and re-appreciate the evidence on which the initial order of conviction was recorded by the trial Court and the subsequent order of acquittal recorded by the appellate Court to arrive at a reasonable conclusion.

The Division Bench further explained that a case of criminal breach of trust has to be proved by documentary evidence and the prosecution must be clear as to what are the documents which required to be proved to take the charges against the accused at home, and, how those documents to be proved. The Judges expressed shock over the fact that neither the investigation nor the prosecution was conducted aiming to prove before the Court the material allegation in respect of the charges of breach of trust and also that such an important case of criminal misappropriation and criminal breach of trust by a public servant was not attached with any importance by the investigating agency and even, the prosecution was conducted without any aim and object.

Further, the Court noticed that the trial court Judge was not attentive enough while hearing the matter, at the time of recording evidence and said that a trial Judge can’t be a mute spectator while proceedings are going on. Explaining the duties of a trial Judge, the Bench said that it also should not take the role of the prosecutor but he should ensure that the materials on the basis of which charges have been framed are properly and legally proved. It is the duty of the trial Judge to see and to find out all the material aspects of evidence of a case for fair ends of justice.

It directed that a trial Judge should not remain silent but should control a criminal case by actively participating therein to find out the truth and must question the witnesses in order to unearth the truth. Finally, the Court directed all trial Judges to remain alive at the time of recording evidence and to actively participate in the process and should control the criminal trial by such active participation to find out the truth and to ensure justice and dismissed the appeal upholding the acquittal. [Teliamura Nagar Panchayat v. Shri Samar Bhusan Sarkar and State of Tripura,  2017 SCC OnLine Tri 63, decided on 21.02.2017]