Full Judgment Text
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Crl.A.1273/2022
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No 1273 of 2022
(Arising out of SLP (Crl) No 9509 of 2019)
M N G Bharateesh Reddy Appellant
Versus
Ramesh Ranganathan and Another Respondents
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2022.08.23
17:32:17 IST
Reason:
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J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1. Leave granted.
2. This appeal arises from a judgment dated 12 July 2019 of a Single Judge of
the High Court of Karnataka.
3. The first respondent was employed by BGS Apollo Hospital, Mysore, the
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second respondent , as a Consultant Neurosurgeon on a monthly
guaranteed fee of Rs. 50,000. He worked in that capacity from March 2004
until June 2014. A contract, styled as a Consultancy Agreement was
entered into between the first respondent and the hospital on 1 April 2013
containing his terms of engagement. One of the terms of the engagement
was that either party may terminate the agreement, with or without cause,
by giving a prior notice of thirty days. On 3 June 2013, the management of
the hospital enhanced the emoluments of the first respondent by assuring
him a guaranteed monthly fee of Rs 4,25,000.
4. Thereafter, differences arose between the first respondent and the
management of the hospital. The first respondent wrote a letter dated 9
January 2014 to the Appellant alleging that patients referred to him were
being diverted to other doctors of the hospital at the enquiry and reception
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“hospital”
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counter. Through the said letter, he also requested the Appellant to take
action against the erring staff members. The services of the first respondent
were terminated on 30 May 2014 for inconsistent and unsatisfactory
behavior in terms of the Consultancy Agreement. Aggrieved by his
termination, the first respondent furnished a representation on 31 May 2014
to the Managing Director, Apollo Group of Medical Sciences highlighting
gross irregularities in the billing of patients. In this representation, he also
alleged that the Appellant had been threatening and maligning him. On 2
June 2014, the first respondent wrote a letter to Director of Medical Services
of the hospital requesting permission to treat patients till 30 June 2014, the
end of his notice period.
5. On 10 October 2014, the first respondent filed a complaint under Section
200 of the Code of Criminal Procedure 1973, being PCR No 2536 of 2014,
before the First Additional Civil Judge (Junior Division) and Judicial
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Magistrate First Class, Mysore . In his complaint, the first respondent
alleged that the Appellant misused his authority and terminated his services
with an oblique and ulterior motive of defaming him. The JMFC by an order
dated 3 March 2015 took cognizance under Sections 120A, 405, 415, 420,
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499, and 500 of the Indian Penal Code . The order of the JMFC was
challenged in revision under Section 397, Code of Criminal Procedure 1973
before the IVth Additional Sessions Judge, Mysore.
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“JMFC”
3
“IPC”
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6. The Additional Sessions Judge by an order dated 16 December 2015 set
aside the order of the JMFC on the ground that the complaint did not
disclose the ingredients of the offences of defamation or cheating .
Moreover, the Additional Sessions Judge held that the JMFC was not
competent to take cognizance of the offence punishable under Section 420
of the IPC.
7. The order of the Additional Sessions Judge was called into question by the
first Respondent before the High Court of Karnataka. The Single Judge by
the impugned judgment dated 12 July 2019 held that no case was made out
against the Appellant under sections 499 and 500 of the IPC. However, the
Court held that the material placed on record prima facie disclosed
ingredients of offences under sections 405 and 420 of the IPC.
8. Notice was issued in these proceedings on 25 October 2019 in pursuance of
which the first Respondent has appeared.
9. We have heard Mr Manan Kumar Misra, senior counsel for the Appellant
and Ms Radhika Gautam, counsel for the first respondent, who is the
contesting party.
10. The issue which presents itself for determination in these proceedings is
whether the ingredients of the offences of cheating and criminal breach of
trust have been made out on the face of the complaint. Following the well
settled principle of law, the contents of the complaint would have to be read
in order to deduce as to whether the ingredients of the offence have been
duly established.
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11. The complaint filed by the first respondent on 10 October 2014 contains a
narration of his engagement by the hospital as a Consultant Neurosurgeon
pursuant to an offer dated 16 January 2004 and of his having worked
between March 2004 to June 2014 by establishing the Department of
Neurosurgery.
12. Paragraph 6 of the complaint contains a recital that as a result of the
incompetence of the billing staff in the hospital, the fees which were to be
charged for the first respondent were wrongly billed and drastically reduced.
The complaint states that he drew this to the attention of the Chief Operating
Officer in October 2011 and thereafter to the Appellant who had recently
joined as the General Manager of the hospital. The complainant alleges that
he had sustained a loss on the receipt of his professional fees and was
verbally assured by the Appellant that the hospital would reimburse the fees
after a thorough enquiry. Further, there are bald averments in the complaint
that the complainant was targeted by the Appellant “along with his
henchmen”. The complaint refers to certain bills which were raised by the
hospital on 28 April 2013 and 4 November 2013 wrongly showing the
surgery charges at Rs 1 and Rs 2. The complainant states that he was
removed from the duty roster between 17 May and 31 May 2014 and that he
was eventually removed from the service of the hospital.
13. The ingredients of the offence of cheating are spelt out in Section 415 of the
IPC. Section 415 is extracted below:
“ 415 . Cheating — Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
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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”.
Explanation — A dishonest concealment of facts is a deception within the
meaning of this section.”
14. The ingredients of the offence under Section 415 emerge from a textual
reading. Firstly, to constitute cheating, a person must deceive another.
Secondly, by doing so the former must induce the person so deceived to (i)
deliver any property to any person; or (ii) to consent that any person shall
retain any property; or (iii) intentionally induce 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 such an act or omission must cause or be likely to cause
damage or harm to that person in body, mind, reputation or property.
15. Section 420 deals with cheating and dishonestly inducing delivery of
property. It reads as follows:
“420 . Cheating and dishonestly inducing delivery of property – Whoever
cheats and thereby dishonestly induces the person deceived to deliver any
property to any person, or to make, alter or destroy the whole or any part of a
valuable security, or anything which is signed or sealed, and which is capable
of being capable of converting into a valuable security, shall be punished with
imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.”
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16. In Hridaya Ranjan Prasad Verma v. State of Bihar , a two-judge bench of
this Court interpreted sections 415 and 420 of IPC to hold that fraudulent or
dishonest intention is a precondition to constitute the offence of cheating.
The relevant extract from the judgment reads thus:
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(2000) 4 SCC 168
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| “14. On a reading of the section it is manifest that in the definition there are set | ||
|---|---|---|
| forth two separate classes of acts which the person deceived may be induced | ||
| to do. In the first place he may be induced fraudulently or dishonestly to deliver | ||
| any property to any person. The second class of acts set forth in the section is | ||
| the | doing or omitting to do anything which the person deceived would not do or | |
| omit to do if he were not so deceived. In the first class of cases the inducing | ||
| must be fraudulent or dishonest. In the second class of acts, the inducing must | ||
| be intentional but not fraudulent or dishonest. |
| 15. In determining the question it has to be kept in mind that the distinction | |
|---|---|
| between mere breach of contract and the offence of cheating is a fine one. It | |
| depends upon the intention of the accused at the time of inducement which | |
| may be judged by his subsequent conduct but for this subsequent conduct is | |
| not the sole test. Mere breach of contract cannot give rise to criminal | |
| prosecution for cheating unless fraudulent or dishonest intention is | |
| shown right at the beginning of the transaction, that is the time when the | |
| offence is said to have been committed. Therefore it is the intention | |
| which is the gist of the offence. To hold a person guilty of cheating it is | |
| necessary to show that he had fraudulent or dishonest intention at the | |
| time of making the promise. From his mere failure to keep up promise | |
| subsequently such a culpable intention right at the beginning, that is, | |
| when he made the promise cannot be presumed.” |
(emphasis supplied)
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17. In v. a two-judge bench of this Court held that a
Dalip Kaur Jagnar Singh
dispute arising out of a breach of contract would not amount to an offence of
cheating under section 415 and 420. The relevant extract is as follows:
“9. The ingredients of Section 420 of the Penal Code are:
“(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
| (iii) To consent that any person shall retain any property and finally intentionally | |
|---|---|
| inducing that person to do or omit to do anything which he would not do or | |
| omit.” |
10 . The High Court, therefore, should have posed a question as to whether any
act of inducement on the part of the appellant has been raised by the second
respondent and whether the appellant had an intention to cheat him from the
very inception. If the dispute between the parties was essentially a civil
dispute resulting from a breach of contract on the part of the appellants
by non-refunding the amount of advance the same would not constitute
an offence of cheating. Similar is the legal position in respect of an
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(2009) 14 SCC 696
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| offence of criminal breach of trust having regard to its definition | |
|---|---|
| contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of | |
| M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703])” |
(emphasis supplied)
18. Applying the above principles, the ingredients of Sections 415 and 420 are
not made out in the present case. The grievance of the first respondent
arises from the termination of his services at the hospital. The allegations
indicate that there was an improper billing in respect of the surgical services
which were rendered by the complainant at the hospital. At the most, the
allegations allude to a breach of terms of the Consultancy Agreement by the
Appellant, which is essentially in the nature of a civil dispute.
19. The allegations in the complaint are conspicuous by the absence of any
reference to the practice of any deception or dishonest intention on behalf of
the Appellant. Likewise, there is no allegation that the complainant was as a
consequence induced to deliver any property or to consent that any person
shall retain any property or that he was deceived to do or omit to do
anything which he would have not done or omitted to do if he was not so
deceived. The conspicuous aspect of the complaint which needs to be
emphasized is that the ingredients of the offence of cheating are absent in
the averments as they stand.
20. Section 405 of the IPC deals with criminal breach of trust and reads as
follows:
“405 . Criminal breach of trust – Whoever, being in any manner entrusted
with property, or with any dominion over property, dishonestly misappropriates
or converts to his own use that property, or dishonestly uses or disposes of
that property in any direction of law prescribing the mode in which such trust is
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to be discharged, or of any legal contract, express or implied, which he has
made touching the discharge of such trust, or willfully suffers any other person
so to do, commits “criminal breach of trust”.”
The offence of criminal breach of trust contains two ingredients: (i)
entrusting any person with property, or with any dominion over property; and
(ii) the person entrusted dishonestly misappropriates or converts to his own
use that property to the detriment of the person who entrusted it.
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21. In Anwar Chand Sab Nanadikar v. State of Karnataka a two-judge
bench restated the essential ingredients of the offence of criminal breach of
trust in the following words:
| “7. The basic requirement to bring home the accusations under Section 405 | |||
|---|---|---|---|
| are the requirements to prove conjointly (1) | entrustment | , and (2) whether the | |
| accused was actuated by the dishonest intention or not misappropriated it or | |||
| converted it to his own use to the detriment of the persons who entrusted it. As | |||
| the question of intention is not a matter of direct proof, certain broad tests are | |||
| envisaged which would generally afford useful guidance in deciding whether in | |||
| a particular case the accused had mens rea for the crime.” |
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22. In Vijay Kumar Ghai v. State of West Bengal another two-judge bench
held that entrustment of property is pivotal to constitute an offence under
section 405 of the IPC. The relevant extract reads as follows:
| “28. “Entrustment” of property under Section 405 of the Penal Code, 1860 is | |
|---|---|
| pivotal to constitute an offence under this. The words used are, “in any manner | |
| entrusted with property”. So, it extends to entrustments of all kinds whether to | |
| clerks, servants, business partners or other persons, provided they are holding | |
| a position of “trust”. A person who dishonestly misappropriates property | |
| entrusted to them contrary to the terms of an obligation imposed is liable for a | |
| criminal breach of trust and is punished under Section 406 of the Penal Code.” |
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(2003) 10 SCC 521
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(2022) 7 SCC 124
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23. None of the ingredients of the offence of criminal breach of trust have been
demonstrated on the allegations in the complaint as they stand. The first
respondent alleges that the Appellant caused breach of trust by issuing
grossly irregular bills, which adversely affected his professional fees.
However, an alleged breach of the contractual terms does not ipso facto
constitute the offence of the criminal breach of trust without there being a
clear case of entrustment. No element of entrustment has been prima facie
established based on the facts and circumstances of the present matter.
Therefore, the ingredients of the offence of criminal breach of trust are ex
facie not made out on the basis of the complaint as it stands.
24. In the above view of the matter, there is a patent error on the part of the
High Court in setting aside the judgment of the Additional Sessions Judge
and by holding that cognizance was correctly taken of the offence
punishable under Sections 405, 415, and 420 of the IPC.
25. We accordingly allow the appeal and set aside the impugned judgment and
order of the High Court dated 12 July 2019.
26. The order of the IVth Additional Sessions Judge dated 15 December 2015 in
Criminal Revision Petition No 94 of 2015 shall accordingly stand restored,
for the reasons which have been indicated above.
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27. Pending applications, if any, stand disposed of.
……….....…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
..………....…........……………….…........J.
[A S Bopanna]
New Delhi;
August 18, 2022
CKB