Criminal Breach Of Trust | Calcutta High Court Refuses To Quash Proceedings Against Tour Operator For Prima Facie Misusing Booking Amounts

The Calcutta High Court’s Circuit Bench at Jalpaiguri has refused to quash criminal proceedings against a tour operator who had been accused of duping his clients by taking large sums of money from them, without utilising the same for their hotel or cab bookings.

Complainants, a group of 18 tourists from Maharashtra, alleged that they had booked a package for hotel and cab services with the petitioner for a tour of Darjeeling & Sikkim, for which they had already paid a huge sum to the petitioner, only to discover that he had not paid any of that money to the hotel or cab operators.

In observing that a prima facie case for investigation existed against the petitioner, a single-bench of Justice Partha Sarathi Sen held:

If a tour operator accepts any such booking, it is an express or implied contract that charges for transportation, food and lodging etc. would be paid by such tour operator but if such amounts are not paid, obviously, the tour operator achieve wrongful gain and the later shall suffer wrongful loss. Hence, it prima facie appears that there was entrustment of property and Ashish without making payment of any amount to Cab and Hotel owners converted the money to his own use.

It was argued by the complainants that the petitioner/tour operator had accepted their booking, but failed to make any arrangements for hotels or cabs in the relevant locations.

It was submitted that there were several attempts made by the complainant’s group to contact the tour operator, but his phone remained switched off.

The complainant’s group then reported the matter to the local Police Station in Lachun after they were pressured by the cab operators and hotel owners to pay more money for their lodging and travel expenses.

Pursuant to such complaint, a case under Sections 406 (criminal breach of trust) and 420 (cheating) IPC were registered against the petitioner/tour operator.

Petitioner’s counsel argued that there was no written agreement between the complainant or any other person from his group with the tour operator, pertaining to any amount paid to him.

It was further argued that the dispute was inherently civil in nature and that continuing a criminal case against the petitioner would be abuse of due process.

State counsel relied on the submissions made by the complainant’s counsel and reiterated that there was an express and implied contract between the tour group and operator such that the latter would make payments for hotel and cab fares out of the money he had taken from the former.

It was argued by State counsel that if these criminal proceedings were quashed, then other tour operators would be encouraged to commit similar offences and the same would send a wrong signal to tourists, since the economy of ‘this part of the country’ depended heavily on tourism.

In evaluating the arguments made by all parties, the Court referred to its power under Section 482 of the CrPC.

It observed that its jurisdiction for quashing criminal complaints could only be exercised upon a reading of the complaint in a holistic manner and only if it was found that proceedings had been initiated with a malicious intent or without any material facts making out an offence.

Court noted that merely because a complaint related to a commercial transaction or contractual dispute, without an alternate remedy being availed of, the same would not be a ground for quashing criminal proceedings.

The test is whether the allegations made in the complaint disclose a criminal offence or not, it was held.

In perusing the sections of the IPC under which the petitioner had been accused and harmoniously interpreting those, the Court found that 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.

Accordingly, it was observed that the tour operator had accepted a booking for 18 people and had taken large sums of money in advance from them, for booking hotels and cabs, but failed to do so, or respond to their phone calls.

Court concluded that there was prima facie evidence that the petitioner had been entrusted by the complainant’s group with their money, but failed to utilise the same for them, instead converting it for his own use.

In holding that the present complaint had not been filed with malicious intent and that sufficient materials were present on record to warrant further investigation, the Court refused to quash the criminal proceedings and dismissed the petitioner’s application.

Citation: 2023 LiveLaw (Cal) 324

Case: Ashish Kumar v State of West Bengal & Anr.

Case No: CRR 197 of 2023

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