Court No. - 34
Case :- APPLICATION U/S 482 No. - 2061 of 2004 Applicant :- Chandra Pal Singh And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Dharmendra Singhal Counsel for Opposite Party :- Govt. Advocate,Manphool Singh
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Dharmendra Singhal, learned counsel for applicants and learned A.G.A. for State.
2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash the complaint and all consequential proceedings in Case No. 558 of 2002 (Smt. Kamlesh vs. Chandra Pal Singh and others), under Section 406 IPC, pending in the Court of IXth Additional Chief Judicial Magistrate, Aligarh.
3. Learned counsel for applicants contended that complaint, if read in its entirety and treating allegations contained therein true, the same do not disclose any offence under Section 405 IPC, hence order of summoning under Section 406 IPC is patently illegal and without jurisdiction.
4. Copy of complaint dated 03.09.2002 (Annexure-1 to affidavit) reads as under:-
^^1- ;g fd izkfFkZ;k@ okfn;k mijksDr irs dh LFkkbZ fuoklh gSA
2- ;g fd izkfFkZ;k @ okfn;k ,d laHkzkUr ifjokj dh lh/kh lknh vui<+ efgyk gSA
3- ;g fd fnukad 04-05-1998 dks izkfFkZ;k @ okfn;k dh 'kknh 'kySUnz mQZ 'kSys'k iq= Jh pUnziky fuoklh xzke mejh Fkkuk exkSjkZ ftyk eFkqjk ds lkFk fgUnq jhfr fjokt ds lkFk ?kwe/kke ls okfn;k ds xzke HkSjk xkSjok eas lEiUu gqbZ FkhA
4- ;g fd 'kknh ds ckn izkfFkZ;k @ okfn;k us vius L=h/keZ dk ikyu fd;kA
5- ;g fd izkfFkZ;k ds firk us 'kknh eas djhc 2 yk[k :0 [kpZ fd;k Fkk ftlesa 61 gtkj :0 udn ,d lksus dh tathj] 151 crZu] ,d vyekjh] diM+s lkSQk] dwyj CySd ,.M CokbV Vh0oh0 ?kMh daqMy js'keiV~Vh >qedh rksfM;k vkfn lkeku fn;k FkkA
6- ;g fd izkfFkZ;k @ okfn;k us viuk lkjk lkeku viuh llqjky esa igWprs gh viuh lkl Jherh 'kqjtks llqj pUnziky fej ifr 'kSysUnz mQZ 'kSys'k vkSj eb;k llqj tksxsUnz ds gokys dj fn;kA
7- ;g fd izkfFkZ;k @ okfn;k dk lkjk lkeku vkt Hkh mldh lkl llqj ifr ,oa uun vkSj ebZ;k llqj ds dCts eas gSA
8- ;g fd izkfFkZ;k @ okfn;k dk lkjk lkeku cjrus @ bLrseky djus dks ekaxk rks mUgkasus lkQ bUdkj dj fn;kA
9- ;g fd izkfFkZ;k @ okfn;k dk lkjk L=h/ku mijksDr foi{khx.k ,d yxk;r ikap us gMi dj fy;k gS vkSj ckj ckj dgus vkSj ekaxus ds ckotwn Hkh uk rks okil fd;k gS vkSj uk gh bLrseky djus dks fn;k gSA vkSj vkijkf/kd "kM;U= ds rgr izkfFkZ;k @ okfn;k ddk lkeku okfil djuk rks nwj vkSj lkeku dh ekax foi{khx.k djus yxs fd ,d jaxhu Vh0oh0 ,d fQzt dwyj eksVj lkbZfdy vkSj ,d HkSal ds fy, izkfFkZ;k @ okfn;k ij ncko cukus yxsA
10- ;g fd tc ;s lkjh ckrs esjs firk dks irk pyh rks mUgksaus 10]000@& :i;s nsdj esjs HkkbZ;ksa ukud jktchj xtsUnz vkSj dkyhpju dks izkfFkZ;k dh llqjky Hkstk vkSj ml gtkj :0 izkfFkZ;k ds llqj pUnziky dks fnyok fn;sA rks ckr dqN fnukas ds fy, 'kkfUr gks xbZA
11- ;g fd mlds ckn iqu% foi{khx.k izkfFkZ;k dks ekjus ihVus vkSj ijs'kku djus yxsA rFkk iqu% lkeku dh ekax djus yxsA vkSj fnukad 22-02-1999 dks foi{khx.k izkfFkZuh dks mlds xkao ds ikl ekjihV dj NksM x;sA
12- ;g fd izkfFkZ;k @ okfn;k us fnukad 26-08-2002 dks ctfj;s jftLV~h Jheku ofj"B iqfyl v/kh{kd dks lwfpr dj pqdh gSA rFkk Fkkus ij Hkh ,d fyf[kr rgjhj ns pqdh gSA
13- ;g fd izkfFkZ;k @ okfn;k ds eqdneas eas vHkh rd dh dk;Zoakgh bykdk iqfyl us ugha dh gSA vr% etcwju izkFkZuk i= le{k vnkyr is'k dj jgh gSA izkFkZuk vr% Jheku th ls izkFkZuk gS fd izkfFkZ;k dk eqdnek jftLVj djus rFkk ckn lcwr ryc Qjek;s tkus ds ckn vfHk;qDrx.k foi{khx.k dks /kkjk 406@120ch@323@ vkbZ0ih0lh0 esa ryc Qjek;s tkus ds vkns'k ikfjr djus dh d`ik djsaA vfr d`ik gksxhA** “1. That the applicant/ complainant resides at the aforesaid address.
2. That the applicant/ complainant is an innocent and illiterate woman of a reputed family.
3. That on 04.05.1998, the marriage of applicant/ complainant was solemnized at her village Bhaira Gaurava with Shailendra alias Shailesh s/o Sh Chandra Pal r/o Village Umri, P.S. Magaura, Distt Mathura with gusto as per Hindu customs.
4. That after the marriage, applicant/ complainant discharged her obligations as wife.
5. That the applicant’s father gave in her marriage 61 thousand rupees in cash, a gold chain, 151 utensils, an almirah, clothes, sofa, cooler, black and white T.V., watch, kundal, resham patti, jhumki, tudiya etc entailing the expenses of around two lakh rupees.
6. That the applicant/ complainant, reaching her in-laws' place, handed over all her articles to her mother-in-law Smt Shurjo, father-in-law Chandra Pal Mir, husband Shailendra alias Shailesh and maternal father-in-law Jogendra.
7. That all articles of the applicant/complainant are still in possession of her father-in-law, mother-in-law, husband, sister-in-law (nanad) and maternal father-in- law.
8. That when the applicant/ complainant demanded all her articles for use, they refused outrightly.
9. That all articles of the applicant/ complainant have been grabbed by the aforesaid defendants 1 to 5 and despite repeated requests and demands they have neither returned nor given for use. Not to speak of returning the articles of the applicant/ complainant, the opposite parties, out of criminal conspiracy, started pressing her for bringing a colour T.V., a refrigerator, a cooler, a motorcycle and a buffalo.
10. That when her father came to know all this, he sent her brothers Nanak, Rajbir, Gajendra and Kali Charan with Rs. 10,000/- to applicant’s in-laws' place and got it handed to her father-in-law Chandra Pal. Thereafter, the situation became normal for some time.
11. That after that the opposite party again started beating and harassing the applicant, and began making demand for articles. On 22.02.1999, the opposite party, having beaten the applicant, left her near the village.
12. That the applicant/complainant has informed the Senior Superintendent of Police through registry on 28.08.2002 and submitted a written complaint at the police station as well.
13. That the local police has not taken any step regarding the case of the applicant/complainant; therefore, she is submitting application before the court.
Prayer Therefore, you, sir, are requested to pass an order for registering the case of the applicant and to summon the accused persons for the offences u/s 406, 120B and 323 IPC after summoning all the evidence. It will be very kind of your good-self.”
(English translation by Court)
5. Ex facie, I find it difficult to hold that aforesaid allegations satisfy ingredients of Section 405 IPC so as to justify summoning of petitioner under Section 406 IPC.
6. Section 406 IPC provides punishment for “criminal breach of trust” which may be imprisonment for a term upto three years with fine or with both. The term “criminal breach of trust” is defined in Section 405 IPC, which reads as under:
“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 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 wilfully suffers any other person so to do, commits “criminal breach of trust.
Explanation 1.—A person, being an employer of an estab- lishment whether exempted under Section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.—A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and admin- istered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.”
7. The necessary ingredients to attract offence of “criminal breach of trust”, are:
(A) entrustment to any person with property or with any dominion over property;
(B) the person entrusted:
(i) dishonestly misappropriated or converts to his own use of that property;
(ii) dishonestly used or disposed of that property or wilfully suffers any person so to do in violation--
(a) of any direction of law prescribing the mode to which such trust is to be discharged;
(b) of any legal contract made touching the discharge of such trust.
8. In Bhikari Charan Mohapatra Vs. State of Orissa, 1982 Cr.L.J. NOC 174 a Sarpanch had applied to Block Development Officer for supply of seeds on credit by specifically stating in application that supply would not benefit him alone but other persons in locality. The direction had been given to pay back amount within a week on supply of seeds but he failed to pay amount within stipulated time. Orissa High Court held that it amounts to breach of trust and not criminal breach of trust.
9. Criminal breach of trust, therefore, would require complainant to show, (a) that accused was entrusted with property or with dominion over it; and, (b) that he misappropriated it or converted it to his own use or used it or disposed it. Mens rea is an essential element.
10. In R. Kalyani Vs. Janak C. Mehta and others, 2009(1) SCC 516, Court has explained, when it would be justified for High Court to interfere in criminal proceedings and Court has said:
“Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.”
11. This decision has been followed in Kamlesh Kumari and Ors. vs. State of U.P. and Ors., 2015(6) SCALE 77. This has also been followed recently by a Division Bench of this Court, (in which I was a member) in Sh. Suneel Galgotia and another Vs. State of U.P. and others, 2016(92) ACC 40.
12. Following above authorities and exposition of law, and discussion as also after examination of complaint, I have no manner of doubt that complaint in question does not satisfy ingredients of Section 405 IPC, hence no offence punishable under Section 406 IPC can be said to have been committed. In such circumstances, order passed by Court below summoning petitioner is clearly illegal, without jurisdiction and amounts to misuse of process of law.
13. In view thereof, application is allowed. Impugned summoning order dated 22.10.2002 as also the complaint are hereby quashed.
Order Date :- 29.4.2019 AK