Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.30285 of 2013 ====================================================== Heera Sao son of Late Saryug Sao, resident of Village-Bambhai, P.S. Mehandia, District-Arwal. Versus .... .... Petitioner The State of Bihar .... .... Opposite Party ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 2 22-07-2013 Heard learned counsel for the petitioner and learned counsel for the State. One Gaya Sao lodged a written report before the Officer in-Charge of Upahara Police Station stating inter alia that he has a Rice Mill at Upahara Gola. He is a wholesaler of rice. The retailers of nearby locality purchased rice from him. He further alleged that the petitioner being a retailer purchased rice valued at Rs.5,39,222.00 on three different dates i.e. on 07.09.2007, 11.09.2007 and 15.09.2007. The petitioner paid Rs.4,35,000.00 in three instalments against sale price of the rice. However, Rs.1,04,022.00 remained due to be paid. On repeated demands, the petitioner failed to pay the balance amount due against him. On the basis of such allegation, Upahara P.S.Case No.13 of 2010 dated 19.03.2010 was registered against the petitioner for the offence punishable under Section 406 of the Indian Penal Code
Legal Reasoning
Patna High Court Cr.Misc. No.30285 of 2013 (2) dt.22-07-2013 2/6 (hereinafter referred to as ‘the Penal Code’). The police investigated the case and submitted charge-sheet, pursuant to which the learned Sub-Divisional Judicial Magistrate, Daudnagar, Aurangabad took cognizance of the offence. Subsequently the case
Legal Reasoning
was transferred to the Court of Sri K. C. Mishra, Judicial Magistrate, 1st Class, Daudnagar, Aurangabad. The petitioner filed an application under Section 239 of the Code of Criminal Procedure for discharge. However, the learned Magistrate after hearing the parties dismissed the application filed on behalf of the petitioner vide order dated 27.05.2013. In the impugned order, the learned Magistrate has held that the witnesses have supported the allegations made in the F.I.R. and an offence under Section 406 of the Penal Code is made out against the petitioner. Learned counsel for the petitioner submitted that even if the entire allegations made in the F.I.R. are taken to be true, no offence under Section 406 of the Penal Code would be made out. On the other hand, learned counsel for the State submitted that there is allegation that the petitioner failed to pay the entire amount to the informant against the sale price of rice and as such he is liable for committing an offence of criminal breach of trust. Patna High Court Cr.Misc. No.30285 of 2013 (2) dt.22-07-2013 3/6 The offence of criminal breach of trust is defined under Section 405 of the Penal Code and the same is punishable under Section 406 of the Penal Code. Section 405 of the Penal Code 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 willfully suffers any other person so to do, commits “criminal breach of trust”. In order to constitute an offence of criminal breach of trust the prosecution must prove the following ingredients:- (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b)dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust. The crucial word used in Section 405 of the Penal Code is ‘dishonestly’ and, therefore, it implies the existence of mens Patna High Court Cr.Misc. No.30285 of 2013 (2) dt.22-07-2013 4/6 rea, that is to say a guilty mind. Dishonest intention is the gist of the offence. Any breach of trust is not an offence. It may be intentional without being dishonest or it may appear dishonest without being really so. The word ‘dishonestly’ has been defined under Section 24 of the Penal Code which reads as under:- the 24. “Dishonestly”.- Whoever does anything with intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”. From this definition it will appear that the term ‘dishonestly’ is not used in the Penal Code in its popular significance as implying deviation from probity. In determining whether a person has acted ‘dishonestly’ or not, it is the intention which is important. A person can be said to have dishonest intention if in taking the property it is his intention to cause gain by unlawful means of the property to which a person so gaining is not legally entitled or to cause loss by wrongful means of property to which the person losing is entitled. The words ‘wrongful gain’ and ‘wrongful loss’ have been defined under Section 23 of the Penal Code which reads as under:- 23. “Wrongful gain”.- “Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled. “Wrongful loss”.- “Wrongful loss” is the loss Patna High Court Cr.Misc. No.30285 of 2013 (2) dt.22-07-2013 5/6 by unlawful means of property to which the person losing it is legally entitled. The word, ‘wrongful’ means prejudicially affecting a party in some legal right. This word is not defined anywhere in the Penal Code. Though the word ‘illegal’ is defined in Section 43, the words ‘by unlawful means’ are intended to refer to an act which would render the doer liable to an action or prosecution. The word ‘illegal’ has been given a very wide meaning under Section 43 of the Penal Code which reads as under:- is applicable 43. “Illegal”. “Legally bound to do”.- to The word “illegal” everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit. The word ‘illegal’ consists of three categories, (i) everything which is an offence; (ii) everything which is prohibited by law; and (iii) everything which furnishes ground for civil action. The words of Section 43 of the Penal Code also cover a breach of contract which furnishes ground for a civil action, that is to say, in respect of which damages could be obtained under Section 73 of the Indian Contract Act, 1872, or which could be enforced specifically. From a bare reading of the aforesaid provisions of the Patna High Court Cr.Misc. No.30285 of 2013 (2) dt.22-07-2013 6/6 Penal Code it would appear that non-payment or under- payment of the price of goods by itself does not amount to commission of an offence of ‘criminal breach of trust’. The dispute between the parties herein is an essentially a civil dispute. In my view, no offence having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have made out in the facts and circumstances of the present case. In that view of the matter, I set aside the order dated 27.05.2013 passed in Upahara P.S. Case No.13 of 2010 corresponding to G.R.No. 188 of 2010/Tr. No.1117 of 2013 by Sri K.C. Mishra, Judicial Magistrate, 1st Class, Daudnagar, Aurangabad. I further hold that the petitioner is being prosecuted in a criminal case on a groundless charge. As a result of the aforesaid order, the petitioner is discharged from prosecution in the aforesaid case. Accordingly, the present application is allowed. (Ashwani Kumar Singh, J) Sunil/-