Criminal Misc. No.25147-M of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.25147-M of 2005 Date of decision : 5.9.2008 Naresh Kumar Gupta and others ....Petitioners Versus Rajesh Kapoor ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Surender Garg, Advocate for the petitioners Mr. Gopal Sharma, Advocate for respondent S. D. ANAND, J. Complainant-respondent Rajesh Kapoor (hereinafter referred to as 'respondent”) filed a (private) complaint under Sections 406, 408, 420, 467, 468, 471, 201, 120-B IPC against the petitioners-accused (hereinafter referred to as 'petitioners') on the allegations which may be indicated as under:- Respondent and petitioner-Sanjiv Kumar became good friends when they had T.V. repair training at the National T.V. Repair training Centre about 13 years prior to the date on which the complaint was filed i.e. 20.12.2002. They have been maintaining cordial relations thereafter and were on visiting terms with each other on occasions like marriage etc. Their families also had trust in each other. Petitioner Naresh Kumar is father-in-law of petitioner-Sanjiv Kumar; while petitioner-Hira Lal is an associate of the former. In the month of June, 2000, petitioners-Sanjiv Kumar and Naresh Kumar came out to the house of respondent and informed him that they had been able to obtain large number of construction assignments, that they would not be able to handle those Criminal Misc. No.25147-M of 2005 -2- contractual assignments on their own, that they had already associated petitioner Hira Lal as a partner and that they wanted the respondent as well to join them. They called upon the respondent to make his own contribution into business with an assurance that he would get his share of profit in proportion to his investment. He was further assured that in addition to the above, he would also get remuneration at the rate of Rs.7000/- per month for looking after the construction job to be undertaken at DAV School, Jind. They further informed that if he would not accept the aforementioned remuneration, the amount of remuneration would be added to his investment andhe would be entitled to get his share on profit of that amount as well. The respondent made his contribution in all the contracts. A part thereof was paid by cheques; while the other part thereof was paid in cash. The construction at DAV School, Jind was overseen by the respondent. However, when respondent demanded his share of profit, the petitioners refused to oblige and also did not agree to provide the accounts to him. The respondent filed a complaint on an allegation that petitioners had misappropriated the amount representing his contribution and also his corresponding share of the profit. Learned Trial Magistrate dismissed the complaint by observing as under:- “The statements of the complainant and his witnesses suggest that some financial transaction took place between the complainant and H.N. construction company. The complainant has failed to submit on record any documents that alongwith him the accused any time formed construction company in the name and style of H.N. Construction Company. It is unbelievable a person without executing Criminal Misc. No.25147-M of 2005 -3- written documents invests a huge more amount i.e. Rs. 900000/- with a construction company. In my view the case is of civil in nature. The complainant has failed to adduce any evidence from which it can be concluded that prima facie case punishable under sections 406/408/420/467/468/471/201/120- B IPC exists against the accused. The complaint is dismissed.” In revision, however, the learned Additional Sessions Judge, Jind held that though the Trial Court had recorded a finding that it is a civil liability but in the case “when the entrustment is proved, then it is not a civil liability but also a criminal offence so as to show that the accused have committed an offence under section 468 IPC as they have not issued any receipt nor any document.” Learned counsel for the petitioners argues that the controversy between the parties is of absolutely civil character and does not admit of their indictment under the criminal law, for the simple reason that the essential grievance of the respondent is qua the non payment of his share of profit and also the non refund of contribution made by him. It is argued that the learned Additional Sessions Judge went completely wrong in law by upholding, on the one hand, the finding by the learned Trial Magistrate that it was a case of civil liability and by upholding, on the other hand, that since the entrustment had been proved, the petitioners could also not escape criminal liability offence. Learned counsel for the complainant resists the plea by arguing that the petitioners had defrauded the respondent by retaining his share of contribution and by not accounting for the expenditure on construction etc. It is also the plea that the petitioners had also committed incurred criminal liability by refraining from issuing any documentation in Criminal Misc. No.25147-M of 2005 -4- lieu of the contribution made by respondent. The plea on behalf of the petitioners deserves acceptance for the reasons indicated hereunder:- A conjunctive perusal of the judgments rendered by the learned Trial Magistrate and also learned Additional Sessions Judge would lead to the irresistible conclusion that the controversy between the parties is representative of a liability of civil character only. On the own showing of the respondent, he handed over the part of the contribution in the form of cheques. Further, it is an averment by him only that he had supervised the construction job at DAV School, Jind. If the petitioner had a dishonest intention (as presently argued), they would not have accepted the contribution of the respondent by cheques. Apart therefrom, they would also have not allowed the respondent to supervise construction at DAV School, Jind. It is one thing to aver that the party opposite has committed a default in retaining something due to the party. It is, however, quite another thing to aver that party retaining that amount and refraining from furnishing accounts is guilty of misappropriation. The legal connotation of civil liability and criminal liability in the given circumstances of the case is absolutely clear. The petition shall stand allowed accordingly. The impugned order dated 21.8.2004 passed by learned Additional Sessions Judge, Jind is reversed; while that of the Chief Judicial Magistrate, Jind is restored. The complaint filed by the respondent shall stand dismissed. September 05, 2008 (S. D. ANAND) Pka JUDGE Criminal Misc. No.25147-M of 2005 -5-