Mr. Robert John D'Souza and Others vs. Mr. Stephen v. Gomes and Another (CRIMINAL APPEAL NO.953 of 2015)

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.953 OF 2015
(@ Special Leave Petition (Crl.) No. 330 of 2015)
Mr. Robert John DSouza and others
Appellants
Versus
Mr. Stephen V. Gomes and another
Respondents
JUDGMENT
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
Page1
Page 2 of 12
Complaint case No. 357 of 2012, filed 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 Societies
Registration Act, 1970. Appellant No. 1, appellant No. 2 and
appellant No. 3 were President, Secretary 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 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 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 the
purchasers (appellant Nos. 7 to 12), executed sale deeds in the
Page2
Page 3 of 12
same year in favour of the Directors of the Society.

alleged
by
the
complainant/respondent
No.1
It is
that
the
appellants have fraudulently usurped the property through

the sale deeds mentioned above, and thereby committed
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
statement of the complainant under Section 200 of the Code of
Criminal Procedure, 1973 (for short CrPC), summoned the
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 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
appeal through special leave.
Page3
Page 4 of 12
4.
We have heard learned counsel for the parties and
perused the papers on record.

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
connected with the affairs of the Society, as such he has
(ii)
no locus to file the criminal complaint.

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

The courts below have erred in law in not appreciating
that the complaint in question was filed to get personal
vendetta by respondent No. 1 against the Directors of the
(iv)
Society.
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 Deputy
Commissioner, Dakshin Kannada, Mangalore, and the
Page4
Page 5 of 12
same
was
investigation,
sent
and
to
Police
the
Station
Circle
Suratkal
Inspector,
for
after
investigation, did not find any offence to have been

committed by the appellants, as the dispute was purely
(v)
of civil in nature.
Ingredients of the offences punishable under Sections
(vi)
406, 409 and 420 IPC are not made out.

None of the transactions of sale in question is against
any bye-law or clause of Memorandum of Association 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 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 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
Page5
Page 6 of 12
courts below, it is stated that the courts below have

committed no error of law.
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
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 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

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.
Page6
Page 7 of 12
8.
In view of the above facts, apparent on the record, we 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
property.
The complaint 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.
9.
In Ram Narayan
Popli
v.
Central
Bureau
of
Investigation1, this Court, per majority, has explained

entrustment in paragraph 363 as under: The term entrustment is not necessarily a term of
law. It may have different implications in different
contexts. 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.
10.
In State of Gujarat v. Jaswantlal Nathalal2, this
Court in paragraph 8 has observed that a mere transaction of

sale cannot amount to an entrustment.
1
2
(2003) 3 SCC 641

AIR 1968 SC 700
Page7
Page 8 of 12
11.
At this stage we also think it proper to observe that in 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, 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 above capacities.
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, 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 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.
Page8
Page 9 of 12
Explanation. A dishonest concealment of

facts is a deception within the meaning of this
section.
Illustrations
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 reflects that the complainant was deceived or he or
anyone else was induced to deliver the property by deception.
What was done, was so reflected in the resolutions, and sale
deeds.
14.
In
Mathavrao
Sambhajirao
Jiwajirao
Chandrojirao
Scindia
Angre
and
and
others
v.
others3,
three-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
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 for the
court to take into consideration any special features
which appear in a particular case to consider
whether it is expedient and in the interest of justice
to permit a prosecution to continue. This is so on
3
(1988) 1 SCC 692
Page9
Page 10 of 12
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
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.
15.
In Suresh v. Mahadevappa Shivappa Danannava
and another4, criminal prosecution was quashed by the Court

in respect offence of cheating noticing that the complaint was
filed after a lapse of ten years.
16.
In Inder Mohan Goswami and another v. State of
Uttaranchal and others5, this Court in paragraphs 25 and

46 has observed as under: 25. Reference to the following cases would reveal
that the courts have consistently taken the view
that they must use this extraordinary power to
prevent injustice and secure the ends of justice. The
English courts have also 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. DPP (1964
AC 1254) Lord Devlin stated that where particular
criminal proceedings constitute an abuse of
process, the court is empowered to refuse to allow
the indictment to proceed to trial. Lord Salmon in
DPP v. Humphrys (1977 AC 1) stressed the
4
5
(2005) 3 SCC 670

(2007) 12 SCC 1
Page10
Page 11 of 12
importance of the inherent power when he observed

that it is only if the prosecution amounts to an
abuse of the process of the court and is oppressive
and vexatious that the judge has the power to
intervene. He further mentioned that the courts
power to prevent such abuse is of great
constitutional importance and should be jealously
preserved.
xxx
xxx
xxx
46. The court must ensure that criminal

prosecution is not used as an instrument of
harassment or for seeking 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 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 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
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
Page11
Page 12 of 12
after 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 the
courts below. 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 quashed.
.....J.
[Dipak Misra]
..J.
[Prafulla C. Pant]
New Delhi;
July 21, 2015.
Page12

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Reportable

IN THE SUPREME COURT OF INDIA

Mr. Robert John DSouza and others

This appeal is directed against order dated 9.10.2014,

passed by the High Court of Karnataka at Bangalore in

Complaint case No. 357 of 2012, filed by respondent No. 1,

Brief facts of the case are that a Society named Mukka

Welfare Society was constituted on 28.3.1970 for charitable

It is further stated that the

purchasers (appellant Nos. 7 to 12), executed sale deeds in the

same year in favour of the Directors of the Society.

appellants have fraudulently usurped the property through

The criminal complaint filed by respondent No. 1 was

registered by the 1st Additional Senior Civil Judge and Chief

The appellants filed Criminal

Revision Petition No. 58 of 2012 before the Principal Sessions

appellants filed a petition under Section 482 CrPC before the

appeal through special leave.

We have heard learned counsel for the parties and

perused the papers on record.

The impugned orders passed by the High Court and the

other authorities below are challenged before us mainly on the

no locus to file the criminal complaint.

not taking note of said fact.

investigation, did not find any offence to have been

406, 409 and 420 IPC are not made out.

In the counter affidavit filed on behalf of respondent

No.1, it has been stated that the complainant came to know of

It is further stated that the Mukka Welfare

Society receives donations from various institutions and

courts below, it is stated that the courts below have

Arguments were advanced by learned counsel for the

parties on the above lines pleaded before us. Having

It is also relevant to mention here that

admittedly earlier a complaint was made by the complainant

In view of the above facts, apparent on the record, we are

The complaint filed by the complainant nowhere

discloses that the land in question purchased in the year 1978

Investigation1, this Court, per majority, has explained

In State of Gujarat v. Jaswantlal Nathalal2, this

Court in paragraph 8 has observed that a mere transaction of

(2003) 3 SCC 641

At this stage we also think it proper to observe that in the

present case, even if the allegations made in the complaint are

shown in the complaint that the appellants have acted in any

As far as offence of cheating is concerned, the same is

defined in Section 415 IPC, for which the punishment is

Explanation. A dishonest concealment of

From the above language of the Section, one of the

essential ingredients for the offence of cheating is deception,

three-Judge Bench of this Court has laid down the law as to

(1988) 1 SCC 692

the basis that the court cannot be utilised for any

In Suresh v. Mahadevappa Shivappa Danannava

and another4, criminal prosecution was quashed by the Court

In Inder Mohan Goswami and another v. State of

Uttaranchal and others5, this Court in paragraphs 25 and

(2005) 3 SCC 670

importance of the inherent power when he observed