Court No. - 34
Case :- APPLICATION U/S 482 No. - 16148 of 2005 Applicant :- Udhav Das Ratnani Opposite Party :- State of U.P. and Others Counsel for Applicant :- S.K. Tiwari Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
1. Heard Sri S.K.Tiwari, learned counsel for applicant and learned A.G.A. for State.
2. As per letter of Chief Judicial Magistrate, Gorakhpur dated 04.04.2006, notice was served upon respondent-2 but neither any Vakalatnama has been filed nor anyone is present on behalf of respondent-2 despite the case having been called in revise. Hence, I proceed to decide the case after hearing learned counsel for applicant and learned A.G.A.
3. Applicant has 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 entire proceedings of Case No. 585 of 2002,, under Sections 504, 506, 406 IPC, Police Station-Gorakhnath, District-Gorakhpur pending in the Court of Additional Chief Judicial Magistrate, Gorakhpur as also the order dated 05.07.2003 passed by Additional Chief Judicial Magistrate, Gorakhpur summoning applicant. The contents of complaint dated 22.05.2002 read as under:
Þfnukad 22-4-2002 dk le; 3 cts eS m/ko nkl jrukuh iq= laxrey ds vkokl ij tVk'kadj pkSjkgk Fkkuk xksj[kukFk ds ?kj esa etnwjh ysus x;h Fkh mlus el; olh:fu'k iRuh 'kchj vgen irk gqek;w iqj mRrjh Fkkuks xksj[kukFk eSa vius yM+ds lkFk viuk ck;ku ij :i;k ekaxus x;h Fkh rks 9 ekg dk osru 18]000@& :0 crk;k rks m/ko nkl jrukuh vius nks vU; ukSdjksa ds lkFk vk x;s m/ko nkl us iSlk ekaxus ij xkfy;ka nsus yxs vkSj tku ls ekjus dh /kedh fn;k rFkk dgs fd rqEgkjk :0 ughsa nsaxs tks djuk gks ogk ls tkdj eSus bl rjg ogka x;s bl tc gekjs Aß “On 22.04.2002 at 3 o'clock, I had gone to the residence of Udhavdas Ratnani, s/o Sangatmal at Jata Shankar Chowraha, PS Gorakhnath to collect my wages. At that time, Basirun nisha, w/o Shabbir Ahmad, r/o Humayun Pur North, PS Gorakhnath had with his son gone there to collect her outstanding wages. She had stated a sum Rs. 18,000/- to have been outstanding as wages for nine months. On this, Udhavdas Ratnani came with his two servants and started using filthy language over demand of money; and threatened to kill her by saying, “We will not give you your money. Do whatever you can. Go off...(sentence not clear).”
(English translation by the Court)
5. 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, and both these provisions read 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 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.”
"406. 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."
6. "Criminal breach of trust" talks of entrustment of property and dishonest misappropriation or conversion thereof for own use or dishonest use or disposal of property in violation of any direction of law prescribing mode in which property in which such trust is to be discharged, or of any legal contract by a person who has contravened the said provision.
7. Learned A.G.A. appearing for respondent-State despite repeated query could not show that aforesaid complaint discloses an offence under Section 406 IPC.
8. When I examine the facts of this case in the light of above discussion, I do not find that allegations contained therein satisfy ingredients of aforesaid offences under Section 406 IPC.
9. So far as Sections 504 and 506 IPC are concerned, it cannot be said that ingredients thereof are not satisfied, therefore, I find no reason to interfere in present matter with respect to trial of case by Magistrate concerned under Sections 504 and 506 IPC.
10. In view of discussions made hereinabove and considering the allegations contained in the complaint in the case in hand in the light of above authorities, the impugned order as such cannot be sustained in respect of Section 420 IPC.
11. The application is partly allowed. Proceedings of Case No.585 of 2002 under Section 406 IPC pending before Additional Chief Judicial Magistrate, Gorakhpur are hereby quashed.
Order Date :- 27.11.2019 Ashish Pd.2