MR. ROBERT JOHN D'SOUZA AND OTHERS versus MR. STEPHEN V. GOMESANDANOTHER

Citation: [2015] 8 S.C.R. 662 · Decided: 21-07-2015 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

(2015] 8 S.C.R. 662 
A 
MR. ROBERT JOHN D'SOUZA AND OTHERS 
B 
v. 
MR. STEPHEN V. GOMESANDANOTHER 
(Criminal Appeal No. 953 of 2015) 
JULY21, 2015 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
Code of Criminal Procedure, 1973 - s.482 - Criminal 
c proceedings u/ss. 406, 409 and 420 rlw s. 34 IPC - Quashing 
of- Held: In view of the facts of the case, none of the offences 
for which the appellants-accused were summoned, were 
made out from the complaint and material on record - It is 
abuse of process of law by the complainant- Therefore, the 
o criminal proceedings are liable to be quashed- Penal Code, 
1860-ss.406, 409 and 420 rlw s.34. 
Allowing the appeal, the Court 
HELD: 1. It is also not disputed that the sale deeds 
E 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, 
F 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. Admittedly earlier a complaint was 
made by the complainant which was got investigated 
by the police and the result of the investigation was that 
G no offence was found committed by the appellants on 
the ground that the dispute is of civil in nature. In view of 
the these facts, apparent on the record, the High Court 
and the courts below have committed grave error of law 
H 
662 
MR. ROBERT JOHN D'SOUZA AND ORS. v. MR. 
663 
STEPHEN V. GOMESANDANR. 
in ignoring the same. [Paras 7-8] [668-A-D] 
A 
2. 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 B 
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. [para 
8] [668-D-F] 
Ram Narayan Popli v. Central Bureau of Investigation 
2003 (1) SCR 119 = 2003 (3) SCC 641; State ofGujaratv. 
Jaswantlal Nathalal 1968 AIR 700 = 19.68 SCR·. 408 - relied 
on. 
3.ln the present case, even if the allegations made 
c 
D 
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, E 
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 F 
above capacities. [para 11] [669-B-D] 
4. From the language of Section 415 IPC, one of the 
essential ingredients for the offence of cheating is 
deception, but in the present case, from the contents of G 
the complaint it nowhere reflects that the complainant 
was deceived or he or anyone else was induc.ed to deliver 
the property by deception. [para 13] [670-A-B] 
5. None of the offences for which the appellants are H 
664 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
A summoned, is made out from the complaint and material 
on record. It is nothing but abuse of process of law on 
the part of the complainant to implicate the appellants in 
a criminal case after a period of twelve years of execution 
of registered sale deeds in question, who is neither party 
B to the sale deeds nor a member of the Society. 
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 
C quashed. [para 17] [672-C-E] 
Mathavrao Jiwajirao Scindia and others v. Sambhajirao 
Chandrojirao AtJgre and others 1988 (2) SCR 930 = 1988 
(1) SCC 692; Suresh v. Mahadevappa Shivappa Danannava 
D and another2005 (2) SCR 131=2005 (3) SCC 670; lnder 
Mohan Goswami and another v. State of Uttaranchal and 
others 2007 (1 O) SCR 847 = 2007 (12) sec 1 - Relied on. 
Case Law Reference 
E 
2003 (1) SCR 119 
relied on 
para 9 
1968 SCR 408 
relied on 
para 10 
1988 (2) SCR 930 
relied on 
para 14 
F 
2005 (2) SCR 131 
relied on 
para 15 
2007 (10) SCR 847 
relied on 
para 16 
CRIMINALAPPELLATE JURISDICTION: CriminalAppeal 
G No. 953 Of2015. 
H 
From· the Judgment and Order dated 09.10.2014 of the 
High Court of 

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