KISHOR KIRTILAL MEHTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. Rule. By consent, the rule is made returnable forthwith. The learned advocates for the parties waive service.

(2.) The petitioners challenge the order dated 9th June, 2006 passed by the Metropolitan Magistrate, Mumbai, in Criminal Case No. 26/m/06. By the impugned order, the learned Metropolitan Magistrate has directed Gamdevi Police Station to investigate under section 156 (3) of the Code of Criminal Procedure into the complaint dated 1st June, 2006 filed by the complainant, namely, Vijay Kirtilal Mehta, the respondent No. 3 (Intervenor) to this Petition. Pursuant to the said order, MECR No. 7 of 2006 under sections 406 and 409 of the Indian Penal Code, 1860 has been registered at Gamdevi Police Station, Mumbai.

(3.) Referring to a complaint filed by the complainant before the Metropolitan Magistrate, the learned senior counsel appearing for the petitioners submitted that in order to direct investigation in exercise of power under section 156 (3) of the Code of Criminal Procedure, the complaint should disclose necessary ingredients of the offence for which the investigation is intended to be ordered. Considering the same, if one peruses the complaint, it does not satisfy the said requirement. According to the learned senior counsel, the complaint merely makes certain allegations which are neither of cheating nor of criminal breach of trust by an agent and on the contrary, the complaint merely refers to some settlement, the terms of which are said to be confidential, besides that there is no disclosure of actual entrustment or disbursement of any amount to the petitioners, and that therefore the complaint nowhere discloses the basic ingredients of the offence of criminal breach of trust. He further submitted that the complaint refers to some understanding and settlement as also certain transactions, without revealing any involvement of the petitioners in any of such understanding, settlement or transaction, besides that all such understanding, settlement and transaction are stated to have taken place beyond the territorial limits of our country. Being so, it was absolutely necessary for the police to obtain necessary sanction in terms of section 188 of the Code of Criminal Procedure before the commencement of investigation into the matter. Since there is no such sanction, the entire investigation should be held to be ab initio bad in law. He further submitted that even assuming that there is some settlement between the parties, in the absence of disclosure of the terms thereof which could reveal not only the involvement of the petitioner in causing breach of such settlement but which could disclose mens rea in causing such breach of agreement or settlement, there cannot be any criminal liability as such arising out of any such breach. He further submitted that it is not every breach of agreement that would give rise to a criminal liability. Attention was drawn to the decisions in the matter of Sardar Singh vs. State of Haryana, 1977 1 SCC 463, In re M. L. Verghese, 1947 AIR(Mad) 352, Central Bureau of Investigation vs. State of Rajasthan and ors., 1996 9 SCC 735, Shubh Shanti Services Ltd. vs. Manjula S. Agarwalla and ors., 2005 AIR(SC) 2506, M/s Indian Oil Corporation vs. M/s NEPC India Ltd. and ors., 2006 AIR(SC) 2780, Municipal Corporation of Delhi vs. Purshotam Dass Jhunjunwala and ors., 1983 1 SCC 9, Dhanalakshmi vs. R. Prasanna Kumar and ors., Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and ors., 1983 1 SCC 1, Satvinder Kaur vs. State (Govt. of NCT of Delhi) and am., 1999 8 SCC 728, State of Tamil Nadu vs. Thirukkural Perumal, 1995 2 SCC 449 and Om Hemrajani vs. State of U. P. and anr., 2005 1 SCC 617.