Somjeet Mallick vs The State Of Jharkhand

2024 INSC 772 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024 (Arising out of SLP (Criminal) No.6583 of 2024)

SOMJEET MALLICK … APPELLANT(S) VERSUS

STATE OF JHARKHAND & OTHERS … RESPONDENT(S)

JUDGMENT

MANOJ MISRA, J.

1. Leave Granted.

2. This appeal impugns judgment and order of the High

Court1dated 01.02.2024 passed in Cr. M.P. No.3796 of 2018

whereby, exercising powers under Section 482 of the Code of

Criminal Procedure, 19732, the High Court quashed the order

Signature Not Verified dated 20.02.2020, by which cognizance was taken, and all Digitally signed by Gulshan Kumar Arora Date: 2024.10.14 18:10:44 IST Reason:

1 High Court of Jharkhand at Ranchi 2 CrPC Page 1 of 11 further proceedings in connection with Case No.78 of 2016,

registered at P.S. Sakchi, corresponding to G.R. No.1627 of

2016, pending in the court of Chief Judicial Magistrate3,

Jamshedpur.

Factual Matrix

3. The appellant (original complainant) filed an

application, under Section 156(3) CrPC, alleging that the

second and third respondents (original accused) offered to take

appellant’s Truck (Trailor No.NL 01K 1250) on a monthly rent

of Rs.33,000, exclusive of driver’s/helper’s salary, for plying it

between Tata Steel Jamshedpur and Kalinganagar; pursuant

to that offer, an agreement was entered into between the

appellant and the accused on 10.07.2014 thereby letting the

vehicle to the accused for a period up to 31.03.2016 with effect

from 14.07.2014; and, in furtherance thereof, possession of

the Truck was given to the accused. In return, they paid one

month rent, after deducting TDS. But thereafter, though the

Truck had been in possession of the accused since July 2014,

3 CJM

Page 2 of 11 rent including arrears amounting to Rs.12,49,780 was not

paid despite repeated false assurances.

4. On the aforesaid application under Section 156(3) CrPC,

the learned CJM vide order dated 12.11.2016 directed the

police to institute a case and investigate.

5. During investigation when despite notice under Section

41A CrPC the accused did not appear, the police applied to the

CJM for issuance of NBW4 against the accused. The said

application was allowed vide order dated 30.06.2017.

6. Aggrieved with the order dated 30.06.2017, the second

and third respondents filed application under Section 482

CrPC for quashing the aforesaid order as well as proceedings

pursuant to the FIR5 registered as Case No.78 of 2016 at P.S.

Sakchi.

7. In the application under Section 482 CrPC it was, inter

alia, alleged that no agreement was executed; that appellant

intended to let out his Truck parked inside Tata Steel Factory,

but, despite payment of advance rent of one month, necessary

papers concerning the Truck were not provided, therefore, no

agreement was executed; and even if it is taken that agreement

4 Non-bailable Warrant 5 First Information Report

Page 3 of 11 was executed, no offence punishable under Sections 406 and

420 IPC is made out.

8. While the application under Section 482 CrPC was

pending before the High Court, on a police report, cognizance

was taken by CJM on 20.02.2020 and processes were issued

under Section 204 CrPC. Consequently, respondent nos. 2 and

3 (original accused) sought amendment in their prayer before

the High Court so as to include the prayer to quash the

cognizance order.

9. The High Court vide impugned order quashed the order

of cognizance and all further proceedings in the case

concerned while leaving it open to the original complainant to

take recourse to civil remedies.

Reasoning of the High Court

10. The High Court reasoned thus:

a. There is no allegation of entrustment in the FIR,

therefore, offence of criminal breach of trust,

punishable under Section 406 IPC6, is not made out.

6 The Indian Penal Code, 1860

Page 4 of 11 b. Admittedly, one month rent was paid, therefore,

dishonest intention from the very beginning was not

there. The application is only for recovery of rent, which

can be realised by taking recourse to appropriate civil

proceeding. Hence, no offence punishable under

Section 420 IPC is made out.

11. Aggrieved by the order of the High Court, original

complainant is before us.

12. We have heard learned counsel for the parties and have

perused the materials on record.

Submissions on behalf of Appellant

13. On behalf of the appellant, it was submitted:

a. The FIR did disclose that after making

payment of one month rent, no rent was paid

despite false assurances. In such circumstances, a

case for investigation was made out.

b. The High Court did not consider the

materials collected during investigation which

resulted in filing of charge sheet. As charge sheet

was submitted, the High Court ought to have

considered the materials collected during

Page 5 of 11 investigation before concluding whether offence has

been committed or not.

c. The High Court failed to consider that

whereabouts of the Truck was not known.

Otherwise also, since the Truck was not returned, it

could be taken that it has been misappropriated or

disposed of by the accused in violation of the

agreement, thereby disclosing commission of an

offence of criminal breach of trust.

Submissions on behalf of Accused-respondents

14. On behalf of accused respondent(s), it was submitted:

a. The FIR did not disclose commission of any

offence, therefore the High Court was justified in

quashing the entire proceeding.

b. There was no specific allegation in the FIR

regarding disposal or misappropriation of the

Truck, hence no case of criminal breach of trust was

made out.

c. The offence of cheating is not made out

inasmuch as dishonest intention from the very

Page 6 of 11 beginning is not disclosed by the averments in the

FIR.

d. The High Court was justified in quashing the

cognizance order and further proceedings.

Submissions on behalf of State

15. On behalf of State, it is submitted through an affidavit

that the original complainant had informed that as per

agreement between the parties, the Truck/Trailor was rented

to the accused for plying. However, Truck’s present location

was neither known to the original complainant nor could be

ascertained despite hectic efforts.

Analysis

16. Before we proceed to test the correctness of the

impugned order, we must bear in mind that at the stage of

deciding whether a criminal proceeding or FIR, as the case

may be, is to be quashed at the threshold or not, the

allegations in the FIR or the police report or the complaint,

including the materials collected during investigation or

inquiry, as the case may be, are to be taken at their face value

so as to determine whether a prima facie case for investigation

or proceeding against the accused, as the case may be, is made

Page 7 of 11 out. The correctness of the allegations is not to be tested at

this stage.

17. To commit an offence, unless the penal statute provides

otherwise, mens rea is one of the essential ingredients.

Existence of mens rea is a question of fact which may be

inferred from the act in question as well as the surrounding

circumstances and conduct of the accused. As a sequitur,

when a party alleges that the accused, despite taking

possession of the Truck on hire, has failed to pay hire charges

for months together, while making false promises for its

payment, a prima facie case, reflective of dishonest intention

on the part of the accused, is made out which may require

investigation. In such circumstances, if the FIR is quashed at

the very inception, it would be nothing short of an act which

thwarts a legitimate investigation.

18. It is trite law that FIR is not an encyclopedia of all

imputations. Therefore, to test whether an FIR discloses

commission of a cognizable offence what is to be looked at is

not any omission in the accusations but the gravamen of the

accusations contained therein to find out whether, prima facie,

some cognizable offence has been committed or not. At this

Page 8 of 11 stage, the Court is not required to ascertain as to which

specific offence has been committed. It is only after

investigation, at the time of framing charge, when materials

collected during investigation are before the Court, the Court

has to draw an opinion as to for commission of which offence

the accused should be tried. Prior to that, if satisfied, the Court

may even discharge the accused. Thus, when the FIR alleges

a dishonest conduct on the part of the accused which, if

supported by materials, would disclose commission of a

cognizable offence, investigation should not be thwarted by

quashing the FIR.

19. No doubt, a petition to quash the FIR does not become

infructuous on submission of a police report under Section

173 (2) of the CrPC, but when a police report has been

submitted, particularly when there is no stay on the

investigation, the Court must apply its mind to the materials

submitted in support of the police report before taking a call

whether the FIR and consequential proceedings should be

quashed or not. More so, when the FIR alleges an act which

is reflective of a dishonest conduct of the accused.

Page 9 of 11

20. In the instant case, the FIR alleges that the accused took

original complainant’s Truck/ Trailor on hire for a period

starting from 14.07.2014 up to 31.03.2016 at a monthly rent

of Rs.33,000/- but, after payment of 1st month rent, the rent

was not paid despite false assurances. The allegation that rent

was not paid by itself, in ordinary course, would presuppose

retention of possession of the vehicle by the accused. In such

circumstances as to what happened to that Truck becomes a

matter of investigation. If it had been dishonestly disposed of

by the accused, it may make out a case of criminal breach of

trust. Therefore, there was no justification to quash the FIR at

the threshold without looking into the materials collected

during the course of the investigation.

21. In our view, the High Court ought to have considered

the materials collected during investigation before taking a call

on the prayer for quashing the FIR, the cognizance order and

the proceedings in pursuance thereof.

22. To peruse the police report and to understand as to

what type of investigation was carried out by the police, on

19.07.2024 we required the State to place the charge-sheet on

record. However, unfortunately, though the State filed its

Page 10 of 11 affidavit, the charge-sheet was not produced. The affidavit

filed by the State only indicates that they were not able to trace

out the Truck/ Trailor. In these circumstances, we have no

option but to remit the matter to the High Court to decide the

quashing petition afresh in accordance with law after

considering the materials collected by the investigating agency

during the course of the investigation.

23. Accordingly, the appeal is allowed. The impugned order

of the High Court is set aside. The quashing petition shall be

restored to its original number and shall be decided afresh by

the High Court in accordance with law and in the light of the

observations above. All contentions and pleas are kept open

for the parties to urge before the High Court.

24. Pending application(s), if any stand disposed of.

......................................J. (J.B. PARDIWALA)

......................................J. (MANOJ MISRA) NEW DELHI;

OCTOBER 14, 2024 Page 11 of 11