REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 238 OF 2019 SPECIAL LEAVE PETITION (CRL) No. 1434 OF 2018

PROF R K VIJAYASARATHY & ANR                                    .... APPELLANTS

Versus

SUDHA SEETHARAM & ANR               ....RESPONDENTS

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Delay condoned.

2 The  present  appeal  arises  from the  judgment  and  final  order  dated  1

January  2016  of  the  High  Court  of  Karnataka,  rejecting  the  prayer  of  the

appellants to quash the criminal  proceedings instituted by the first  respondent

against them. The High Court stayed the criminal proceedings till the disposal of

a  pending  civil  suit  instituted  by  the  son  of  the  appellants  against  the  first

respondent.

3 The facts relevant to the present dispute are thus:

Rajiv Vijayasarathy Ratnam, (the son of the appellants) and Savitha Seetharam

(the daughter of the first respondent) were married on 24 May 2002. They moved

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to the United States of America and a child was born to them in 2009. Savitha

was  involved  in  a  car  accident  on  5  February  2010  and  proceedings  were

initiated  against  her  abroad.  It  is  alleged  by  the  appellants  that  fearing  the

attachment of their son’s property in the proceedings, an amount of Rs 20 lakhs

was  transferred  by  Rajiv  to  the  bank  account  of  the  first  respondent  on  17

February 2010.  Following a breakdown in marital  relations,  Savitha and Rajiv

have  been  living  separately  since  October  2010.  Multiple  rounds  of  litigation

ensued in various courts.  

4 Savitha  filed  a  private  complaint1 against  her  husband  Rajiv  and  the

appellants  alleging  the  commission  of  various  offences,  including  criminal

intimidation and a demand for dowry. The High Court of Karnataka quashed the

proceeding against appellant No. 2. On 14 February 2013, Rajiv filed a civil suit

for recovery of money2 against the first respondent for the return of the money

allegedly transferred by him into her  bank account.  The suit  is  pending.  Two

divorce petitions instituted by Savita have been dismissed by the family court.  

5 On  25  February  2016,  the  first  respondent  filed  a  private  complaint3

against the appellants which forms the subject matter of the present appeal. The

first respondent alleges that the amount of Rs 20 Lakhs which was transferred by

the son of the appellants was returned in cash to the appellants with interest of

Rs  24,000  on  1  July  2010.  No  receipt  was  allegedly  received  by  the  first

respondent. It is alleged that the appellants and their son have colluded to siphon

the money and that the civil suit filed by the son of the appellants is without merit.

1 PCR No. 3418 of 2012; FIR No. 18 of 2012 registered on 23 February 2012 2 O. S. No. 1305 of 2013 3 PCR 2116 of 2016

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On 11 May 2016, the Additional Metropolitan Magistrate referred the complaint

for investigation under Section 156(3) of the Code of Criminal Procedure 1973.

On 19 May 2016, a First Information Report4 was registered under Sections 405,

406, 415 and 420 read with Section 34 of the Penal Code.  Aggrieved by the

judgment and final order of the High Court rejecting their petition to quash the

FIR, the appellants have filed the present appeal.  

6 Mr  Nidhesh Gupta,  learned Senior  Counsel  representing the appellants

urged the following submissions:

i) No offence is made out from the averments in the complaint as they stand;   ii) The first respondent has admitted that the amount which forms the subject

matter of the present dispute was received from the son of the appellants; iii) The subject matter of the present dispute is of a civil nature and the criminal

complaint constitutes an abuse of the process of the court; and  iv) The allegations in the present complaint are similar to the previous complaint

filed by the daughter of the first respondent.

7 On  the  other  hand,  Ms  Pritha  Srikumar,  learned  counsel  for  the

respondents urged the following submissions:

i) The criminal proceeding is not liable to be quashed as the allegations in the

complaint disclose the ingredients necessary to constitute an offence under

Sections 405, 406, 415 and 420 of the Penal Code; ii) The appellants have colluded with their son to siphon the money as no receipt

was  given  to  the  first  respondent  when the amount  of  Rs  20,24,000  was

transferred; and iii) The law does not require that the complaint should reproduce verbatim every

ingredient of the criminal offence in the complaint.  

4 FIR

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8 The rival submissions fall for our consideration.  

9 The primary question before this Court is whether the High Court has erred

in  rejecting  the  plea  of  the  appellants  for  quashing  the  criminal  proceedings

against them. The question at the heart of the present dispute is whether the

averments in the complaint disclose the ingredients necessary to constitute an

offence under the Penal Code.   

10 Section 482 of Code of Criminal Procedure saves the inherent power of

the High Court to make orders necessary to secure the ends of justice. In Indian

Oil Corpn. v  NEPC India Ltd.5, a two judge Bench of this Court reviewed the

precedents  on  the  exercise  of  jurisdiction  under  Section  482  of  the  Code  of

Criminal Procedure 1973 and formulated guiding principles in the following terms:

“12. …  (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their  entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For  this  purpose,  the  complaint  has  to  be  examined as  a whole,  but  without  examining the merits  of  the allegations. Neither  a  detailed  inquiry  nor  a  meticulous  analysis  of  the material nor an assessment of the reliability or genuineness of  the  allegations  in  the  complaint,  is  warranted  while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is  found  to  have  been  initiated  with mala  fides/malice  for wreaking  vengeance  or  to  cause  harm,  or  where  the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal  ingredients  of  the  offence  alleged.  If  the  necessary factual  foundation  is  laid  in  the  complaint,  merely  on  the

5 (2006) 6 SCC 736

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ground that a few ingredients have not been stated in detail, the  proceedings  should  not  be  quashed.  Quashing  of  the complaint is warranted only where the complaint is so bereft of  even the basic facts  which are absolutely  necessary for making out the offence. (v) …”

11 The High Court, in the exercise of its jurisdiction under Section 482 of the

Code of Criminal Procedure, is required to examine whether the averments in the

complaint constitute the ingredients necessary for an offence alleged under the

Penal Code. If the averments taken on their face do not constitute the ingredients

necessary  for  the  offence,  the  criminal  proceedings  may  be  quashed  under

Section 482. A criminal proceeding can be quashed where the allegations made

in the complaint do not disclose the commission of an offence under the Penal

Code. The complaint must be examined as a whole, without evaluating the merits

of the allegations. Though the law does not require that the complaint reproduce

the  legal  ingredients  of  the offence  verbatim,  the complaint  must  contain  the

basic facts necessary for making out an offence under the Penal Code.  

12 The first respondent has alleged in the complaint that the appellants have

committed offences under Sections 405, 406, 415 and 420 read with Section 34

of the Penal Code. It would thus be necessary to examine the ingredients of the

above offences and whether the allegations made in the complaint, read on their

face, attract those offences under the Penal Code.  

13 Section 405 of the Penal Code reads thus:

“Section 405.- Criminal breach of trust.- Whoever, being in any  manner  entrusted  with  property,  or  with  any  dominion

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over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property  in violation of  any direction of  law prescribing the mode in which such trust is 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”.

A careful reading of Section 405 shows that the ingredients of a criminal breach

of trust are as follows:

i) A  person  should  have  been  entrusted  with  property,  or  entrusted  with

dominion over property;

ii) That person should dishonestly misappropriate or convert  to their  own use

that property, or dishonestly use or dispose of that property or willfully suffer

any other person to do so; and

iii) That such misappropriation, conversion, use or disposal should be in violation

of  any  direction  of  law prescribing  the  mode in  which  such trust  is  to  be

discharged, or of any legal contract which the person has made, touching the

discharge of such trust.

Entrustment is an essential ingredient of the offence.  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 Code6.  

14 Section 415 of the Penal Code reads thus:

“Section 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to

6   Section 406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

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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”.”  

The ingredients to constitute an offence of cheating are as follows:

i) there should be fraudulent or dishonest inducement of a person by deceiving

him;

ii) (a)  the  person  so  induced  should  be  intentionally  induced  to  deliver  any

property to any person or to consent that any person shall retain any property,

or

(b) the person so induced should be intentionally induced to do or to omit to

do anything which he would not do or omit if he were not so deceived; and

iii) in cases covered by (ii) (b) above, the act or omission should be one which

caused or is likely to cause damage or harm to the person induced in body, mind,

reputation or property.

A fraudulent or dishonest inducement is an essential ingredient of the offence. A

person who dishonestly induces another person to deliver any property is liable

for the offence of cheating.  

15 Section 420 of the Penal Code reads thus:

“Section 420. Cheating and dishonestly inducing deliver 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

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which is capable to being converted 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.”

The ingredients to constitute an offence under Section 420 are as follows:

i) A person must commit the offence of cheating under Section 415; and ii) The person cheated must be dishonestly induced to  

(a) deliver property to any person; or  (b) make, alter or destroy valuable security or anything signed or sealed

and capable of being converted into valuable security.

Cheating  is  an essential  ingredient  for  an act  to  constitute  an offence  under

Section 420.  

16 A court exercising its inherent jurisdiction must examine if on their face, the

averments made in the complaint  constitute the ingredients necessary for the

offence.  The relevant  extract  of  the complaint  filed  by  the first  respondent  is

extracted below:  

“The accused person’s son Mr. Rajiv Vijayasarathy Ratnam started to  transfer  all  his  monies  to  different  accounts and also transferred some monies belonging to him in the US to his  parents  accounts  in  Bangalore,  India  and  he  also pleaded his wife i.e. Complainant’s daughter that he also wanted to divert some funds unto Complainant’s account in Bangalore…That Rajiv Vijayasarathy Ratnam diverted some of  his  monies  to  Accused  No.  1  and  2  and  the Complainant…

It is further pertinent to mention that the accident occurred on 05.02.2010 and money was transferred on 17.02.2010, the transfer was due to the insecurity at the behest of  Mr. Rajiv Vijayasarathy Rathnam, the money was not sought or required by the complainant.

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The Complainant daughter Ms. Savitha Seetharam convinced the Complainant to accept transfer of monies which was for the  benefit  of  the  Accused  person’s  son Mr.  Rajiv Vijayasarathy  Ratnam and to  hold  it  in  trust for  him and accordingly the son of the accused transferred monies on 17th February  2010  to  the  Complainant  account  Rs. 20,00,000/- (Rupees Twenty Lakhs only) … It is pertinent to mention  that  the  accused  person’s  son  Mr.  Rajiv Vijayasarathy  Ratnam  insisted  the  Complainant  and  her husband  to  pay  the  said  monies  by  way  of  cash  to  the accused  person’s  including  the  interest…Mr.  Rajiv Vijayasarathy  Ratnam  sought  for  the  return  of  the aforesaid monies i.e. of Rs. 20,00,000/-”  

“…The said monies were paid in cash as per the dicta of the accused person’s  son Mr.  Rajiv  Vijayasarathy  Ratnam has filed a false and frivolous suit…”    (Emphasis supplied)

17 The condition necessary for an act to constitute an offence under Section

405 of the Penal Code is that the accused was entrusted with some property or

has dominion over property. The first respondent has stated that the disputed

sum was transferred by the son of the appellants of his own volition to her. The

complaint clearly states that the amount was transferred for the benefit of the son

of the appellants and that the first respondent was to hold the amount ‘in trust’ for

him. The complaint alleges that the money was transferred to the appellants ‘as

per the dicta’ of the son of the appellants. There is on the face of the complaint,

no entrustment of the appellants with any property.  

18 The condition necessary for an act to constitute an offence under Section

415 of the Penal Code is that there was dishonest inducement by the accused.

The first respondent admitted that the disputed sum was transferred by the son of

the appellants to her bank account on 17 February 2010. She alleges that she

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transferred the money belonging to the son of the appellants at his behest. No act

on part of the appellants has been alleged that discloses an intention to induce

the delivery of any property to the appellants by the first respondent. There is

thus  nothing  on  the  face  of  the  complaint  to  indicate  that  the  appellants

dishonestly induced the first respondent to deliver any property to them. Cheating

is an essential ingredient to an offence under Section 420 of the Penal Code. The

ingredient necessary to constitute the offence of cheating is not made out from

the face of  the complaint  and consequently,  no offence under Section 420 is

made out.  

19 In Binod Kumar v State of Bihar7 certain amounts were due and payable

to a contract worker. When the amount due was not paid due to a termination of

the contract, the worker filed a criminal case against the appellant for criminal

breach of trust. The appellants’ petition under Section 482 of the Code of Criminal

Procedure for quashing was dismissed by the High Court. A two judge Bench of

this Court examined the ingredients of the offence and whether the complaint on

its face disclosed the commission of any offence. This Court quashed the criminal

proceedings holding thus:

“14. At this stage, we are only concerned with the question whether the averments in the complaint taken at their  face value make out the ingredients of criminal offence or not.

18. In  the  present  case,  looking  at  the  allegations  in  the complaint  on the face of it,  we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there  are  no  allegations  as  to  cheating  or  the  dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the  complainant.  Excepting  the  bald  allegations  that  the appellants did not make payment to the second respondent

7 (2014) 10 SCC 663

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and  that  the  appellants  utilised  the  amounts  either  by themselves  or  for  some  other  work,  there  is  no  iota  of allegation as to the dishonest intention in misappropriating the property…

19. Even if  all  the allegations in the complaint  taken at  the face  value  are  true,  in  our  view,  the  basic  essential ingredients  of  dishonest  misappropriation  and cheating  are missing.  Criminal  proceedings  are  not  a  shortcut  for  other remedies.  Since  no  case  of  criminal  breach  of  trust  or dishonest  intention  of  inducement  is  made  out  and  the essential  ingredients  of  Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed.”

20 The suit for recovery of money was instituted by the son of the appellants

against the first respondent in 2013. The complaint alleging offences under the

Penal Code was filed by the first respondent belatedly in 2016. It is clear from the

face of the complaint, that no amount was entrusted by the first respondent to

either  of  the  appellants  and  there  was  no  dishonest  inducement  of  the  first

respondent  by  the  appellants  to  deliver  any  property.  As  stated  by  the  first

respondent in the complaint, the money belonged to the son of the appellants. It

was transferred by the appellants’ son to her on his own volition. The money was

alleged to have been returned to the appellants on the instructions of their son. A

plain  reading of  the  complaint  thus  shows that  the  ingredients  necessary  for

constituting offences under Sections 405, 415 and 420 of the Penal Code are not

made out.   

21 The respondents have relied on the decision of this Court in Rajesh Bajaj

v State of NCT of Delhi8. In that case, the Delhi High Court had quashed an FIR

alleging an offence under Section 420 of the Penal Code on the ground that the

8 (1999) 3 SCC 259

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complaint  did  not  disclose  the  commission  of  any  offence.  Allowing  the

complainant’s appeal, this Court held thus:

“9. It  is  not  necessary  that  a  complainant  should  verbatim reproduce in the body of his complaint all the ingredients of the  offence  he  is  alleging.  Nor  is  it  necessary  that  the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous  scrutiny,  whether  all  the  ingredients  have  been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint  the  court  should  not  hasten  to  quash  criminal proceedings during investigation stage merely on the premise that  one  or  two  ingredients  have  not  been  stated  with details…”

The decision does not advance the submission of the first respondent. As we

have noted above, the complaint in the present case is bereft of the basic facts

necessary to constitute the offences alleged under Sections 405, 406, 415 and

420 of the Penal Code.  

22 Learned Senior Counsel for the appellant contended that the actions of the

first respondent constitute an abuse of process of the court. It is contended that

the present dispute is of a civil nature and the first respondent has attempted to

cloak it with a criminal flavor to harass the aged appellants. It is also contended

that there is an undue delay in filing the complaint from which the present appeal

arises, and this demonstrates the  mala fide  intention of the first respondent in

filing  the  complaint  against  the  appellants.  Learned  Senior  Counsel  for  the

appellants  relied  on  the  decision  of  this  Court  in  State  of  Karnataka v  L

Muniswamy9. In that case, the prosecution alleged that eight of the accused had

9 (1977) 2 SCC 699

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conspired  to  kill  the  complainant.  The  Karnataka  High  Court  quashed  the

proceedings on the ground that no sufficient ground was made out against the

accused. A three judge Bench of this Court dismissed the appeal by the State

with the following observations:

“7…In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High  Court's  inherent  powers,  both  in  civil  and  criminal matters,  is  designed  to  achieve  a  salutary  public  purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.”

23 The jurisdiction under Section 482 of the Code of Criminal Procedure has

to be exercised with care. In the exercise of its jurisdiction, a High Court can

examine whether a matter which is essentially of a civil nature has been given a

cloak of a criminal offence. Where the ingredients required to constitute a criminal

offence are not made out from a bare reading of the complaint, the continuation

of the criminal proceeding will constitute an abuse of the process of the court.   

24 In the present case, the son of the appellants has instituted a civil suit for

the recovery of money against the first respondent. The suit is pending. The first

respondent has filed the complaint against the appellants six years after the date

of the alleged transaction and nearly three years from the filing of the suit. The

averments  in  the complaint,  read on its  face,  do not  disclose the ingredients

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necessary to constitute offences under the Penal Code. An attempt has been

made by the first respondent to cloak a civil dispute with a criminal nature despite

the absence of the ingredients necessary to constitute a criminal offence. The

complaint filed by the first respondent against the appellants constitutes an abuse

of process of court and is liable to be quashed.  

25 For the above reasons, the appeal is allowed. The judgment of the High

Court is set aside and the criminal proceedings arising from PCR 2116 of 2016

instituted  by  the  first  respondent  against  the  appellants  are  quashed.  We

however clarify, that no opinion has been expressed on the merits of the pending

civil suit filed by the son of the appellants for the recovery of money. The pending

suit shall be disposed of in accordance with the law.  

 …….……..…...…...….......………………........J.                                                      [DR DHANANJAYA Y CHANDRACHUD]

……....…..…....…........……………….…........J.               [HEMANT GUPTA]

New Delhi;  February 15, 2019.

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