Court No. - 65
Case :- APPLICATION U/S 482 No. - 22260 of 2014 Applicant :- Mridujal Sharma @ Mridul Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Arvind Kumar,Ajai Singh Counsel for Opposite Party :- Govt. Advocate,Anil Kumar Shukla
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Arvind Kumar, learned counsel for the applicant and Sri Ankit Srivastava, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the entire proceeding of the complaint case No. 1419 of 2013 (Aidal Singh Vs. Mridujal Sharma including the impugned summoning order dated 2.01.2014 passed by the C.J.M. Hathras under Sections 406, 504 and 506 I.P.C., Police Station, Chandpa, District Hathras.
Learned counsel for the applicant has argued that he has been falsely implicated by O.P. No.2 because earlier on 11.05.2013 at 8:00 p.m., O.P. No.2 had beaten up the accused applicant because he was removed from the work assigned to him of repair of school and pursuant to the said F.I.R. under Sections 332, 353, 323, 504 and 506 I.P.C., charge-sheet has been submitted and further it is argued that no case is made out against the applicant in the present case because there was no entrustment of any property/amount to him, hence the trial court has summoned the accused applicants without application of mind in routine manner only on the basis of statement of complainant and two witnesses which needs to be quashed.
Learned A.G.A. has also admitted that the offence under Section 406 I.P.C. is not made out as there was no entrustment of any property to the accused applicant in this case. He has further relied upon the law laid down by Hon'ble Supreme Court in (2019) 2 SCC 401 (Vinod Natesan Vs. State of Kerala and others) in which the facts of this case were that after entering into an agreement by the accused with the complainant with respect to availing of intellectual services for marketing the products of the complainant, the accused did not pay the amount due and payable under the agreement and paid a sum of Rs. 1,50,000/- and without paying the remaining amount backed out from the agreement. The ingredients of Sections 406 and 420 I.P.C. were not found to be satisfied and the order of High Court quashing the proceeding under Section 482 Cr.P.C.
was affirmed by the Apex Court.
I have gone through the complaint/ application under Section 156 (3) Cr.P.C. moved by the O.P. No.2 in which it is stated by him that the O.P. No.2 is a poor labourer of below poverty line. He had done some work of labour in the school of accused applicant for which an amount of Rs. 15,000/- has become due as remuneration when the same was demanded by him, the applicant denied to pay the same. On 11.05.2013 when he demanded the said money, he was badly abused using caste indicative word and was threatened that if he demands the same again, he would be beaten by shoes and the said amount was not paid to him. After registration of the case as Complaint Case No. 1419 of 2013, the statement of the O.P. No.2 was recorded by the trial court and in it, the above-mentioned averments have been repeated. He has also got examined P.W.1 and P.W.2 in which they had also given same statements which was mentioned in the Complaint by O.P. No.2. On the basis of the said statement, the trial court has summoned accused applicant under the above-mentioned sections.
After having gone through the evidence, I find that ingredients of Section 406 I.P.C. are not made out on the basis of averments made as well as evidence recorded by the trial court.
Section 405 and 406 I.P.C. are as follows.
"Section 405 I.P.C.—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 establishment 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 administered 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."
"Section 406 I.P.C. 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."
The necessary ingredient of Criminal breach of trust are that if any property is entrusted to someone and the same is misappropriated or converted to his own use, then offence is made out. In the present case, it is not the case of O.P. No.2 that any amount was given to the accused applicant which was misappropriated by him rather the present case seems to be a dispute of Rs. 15,000/- which the O.P. No.2 has claimed to have become due upon accused applicant by way of labour charges. For the said amount which was required to be paid by accused applicant to O.P. No.2, could have been claimed by O.P. No.2 by filing Recovery Suit in a Civil Court but O.P. No.2 has wrongly chosen the Criminal Court to get the accused summoned. It also appears that earlier a Criminal Case was also filed, which is mentioned above, by the accused applicant against the O.P. No.2, hence, it cannot be ruled out that that the present case may have been slapped by O.P. No.2 against the applicant due to retaliation. The other averments of abusing & threatening to kill also appear to be false which appear to have been made only with a view to giving serious colour to the occurrence. The main fact happens to be non-payment of Rs. 15,000/-
In view of the above cited law and after having gone through the matter at length, this Application under Section 482 Cr.P.C. deserves to be allowed and is allowed and the entire proceeding of the complaint case No. 1419 of 2013 (Aidal Singh Vs. Mridujal Sharma including the impugned summoning order dated 2.01.2014 passed by the C.J.M. Hathras under Sections 406, 504 and 506 I.P.C., Police Station, Chandpa, District Hathras stand quashed.
Order Date :- 26.7.2019 A. Mandhani