Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.34461 of 2011 ============================================== Vidya Sagar Singh son of Ekbali Singh, resident of Village- Kori, P.S.-Bhabua, District-Kaimur at Bhabua .... .... Petitioner/s Versus 1. The State Of Bihar 2. Kunwar Singh son of Sri Laljee Singh, resident of Village-Mahesua, P.S.-Bhabua, District-Kaimur at Bhabua. .... .... Opposite Party/s ============================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 6 09-12-2013 Heard learned counsel for the parties. The present application has been filed for quashing of the order dated 05.03.2010 passed in Complaint Case No. 147 of 2008 by the learned SDJM, Kaimur at Bhabhua, whereby process has been directed to be issued after cognizance being taken for the offences punishable under Sections 406, 420, 467 of the I.P.C. The prosecution case is that the complainant and the petitioner are distantly related. The petitioner was a contractor in Metro Railway in Delhi and the complainant was working with him as Supervisor. The petitioner is alleged to have received Rs.7,85,000/- from thirteen persons for providing employment in Railways. After examining the complainant on solemn 2
Legal Reasoning
Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 2 / 9 affirmation and recording the statements of three witnesses, the processes were directed to be issued after cognizance being taken under Sections 406,420 and 467 of the Indian Penal Code vide order dated 5.3.2010. It is submitted by learned counsel for the petitioner that since the complainant was working as Supervisor with the petitioner, the complainant fled away with Rupees Two Lacs and for refund of the same the petitioner was exerting pressure upon him. Hence, as a retaliatory measure the complaint was filed on 07.02.2008, for the cause of action arising in the year 2005, as it is alleged that the money was given to the petitioner on 24.12.2005. It is further submitted that there is no proof with regard to the payment of money. Hence, no offence under Sections 406,420 and 467 IPC is made out. It is submitted by learned counsel for the complainant,that the complainant and others have been cheated and finding prima facie case, the process has been directed to be issued after cognizance being taken. A supplementary affidavit has been filed that the petitioner has no criminal antecedent. Considering the rival submission of the parties, it appears from the bare perusal of the complaint that even if the allegations are correct, the parties were pari delicto to commit the offence. Employment in railway or government is 3 Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 3 / 9 available on advertisement and selection and not purchased by money. Such appointment is an outright illegal appointment. If two persons agreed to commit an act, which is an offence under the Indian Penal Code and the agreement fails because the crime could not be committed, can it be said that it constitutes an offence under the Indian Penal Code when under the Penal Code the agreement itself was an offence. Section 405 IPC defines criminal breach of trust. The essential ingredients to be noticed under Section 405 IPC on the fulfilment of which the punishment follows under Section 406 IPC are as under :- (a) Entrustment with property, (b) Dishonest misappropriation, conversion by the person entrusted, (c) Dishonest use or disposal of the entrusted property in violation of any direction of law for the mode of discharge of the trust and (d) Use or disposal of the entrusted property contrary to legal contract express or implied. The question for consideration shall be the meaning and scope of the words „entrustment‟. Shall it encompass entrustment of property, for an illegal purpose. Would it amount to entrustment in the sense that the owner of the property retained ownership and gave it to the party in crime, in trust ? Was such entrustment made for user in accordance with law or a legal contract? Will it contemplate a 4 Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 4 / 9 situation where concisely having entrusted property for a purpose contrary to law and a manner of disposal contrary to law still the person making such illegal entrustment can claim to retain dominion over the property so as to invite the applicability of the Penal Code because the offence agreed to be committed failed. The answer shall undoubtedly be in the negative. There cannot be any entrustment of a property for its use or disposal contrary to the law or an illegal contract with the owner of the property retaining dominion over the property. The moment he parts with the property for an illegal purpose, “entrustment” as defined in the Penal Code has no application. The issue has been considered by the Apex Court in the case of Chellor Mankkal Narayan Ittiravi Nambudiri Vs.State of Travancore, reported in AIR 1953 SC 479. Paragraph 21 reads as follows :- that “The other point requires 21. consideration is, whether on the prosecution evidence as it stands, the accused can be held guilty of criminal breach of trust ? As laid down in S. 385, Cochin Penal Code, (corresponding to S. 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the in the ownership or beneficial property in respect of which criminal breach interest 5 Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 5 / 9 of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In the case before us, it is not disputed that if the sum of Rs. 23,100/- was paid by P.W. 1 to the appellant by way of illegal gratification to induce the latter to make an allotment of cloth in his favour, there could be no question of entrustment in such payment. The payee would then receive the money on his own behalf and not on behalf of or in trust for anybody else. The criminality of an act of this character would consist in illegal receipt of the money and the subsequent misappropriation or conversion of the same would not arise at all.” question of Now, the question arises that when the entrustment could not be held to be valid, whether any offence under Section 420 IPC is made out on the basis of such entrustment ? Section 415 IPC defines the offence of cheating. The essential ingredients are intention to deceive any person fraudulently, to dishonestly induce the person so deceived to deliver any property which he would not have done if he was aware of the deception. The essential ingredient therefore is a dishonest intention from the very inception. In the present case there is no allegation of dishonest intention from the very inception. On the contrary, the complainant is related to the petitioner and on being satisfied that the complainant and others will get employment in railway, the money was entrusted though there is no proof with regard to such entrustment. Hence, in absence of any allegation of fraudulent 6 Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 6 / 9 and dishonest intention from very inception or narration to that effect, this Court is not satisfied to accept the plea that charge could always be framed under the appropriate sections. If the complainant voluntarily parted with money for an illegal purpose of securing appointment in Railway service for a money consideration, which itself was an offence, can he urge that he has been cheated. The concept of cheating shall have no application where the act which is stated to constitute was itself an offence. He was aware of the crime and cannot contend that failure to commit the crime amounted to cheating. Section 467 of the Indian Penal Code prescribes punishment for forgery of valuable security/will which stipulates that who ever forges a document which purports to be a valuable security or a will, or an authority to adopt a son or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquaintance or receipt for the delivery of any immovable property or valuable security. In view of this Court, no offence under Section 467 of the Indian Penal Code is made out against the petitioner as there is nothing on record to suggest that there is any proof with regard to entrustment/payment of money by the complainant to the petitioner or forging any valuable security. 7 Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 7 / 9 Section 23 of the Indian Contract Act declares a contract which is contrary to the law or opposed to public policy, to be void. Therefore, even under the civil law the agreement between the parties was unlawful, since its very inception. Both had agreed to do something which was prohibited in law. The contract ex-facie being unlawful, both parties can be said to have intended to exploit the law for an illegal purpose. The complainant himself has admitted that the petitioner is related to him and he was working as Supervisor under the petitioner. The claim of the petitioner is that the complainant fled away with Rupees Two Lacs and in order to save his skin, has lodged the present case maliciously. The Apex Court in the case of State of Haryana & Others Vs. Bhajan Lal & Others, reported in 1992 Supp (1) Supreme Court Cases 335 has enumerated certain illustrative circumstances, when the court can exercise the inherent jurisdiction under Section 482 Cr.P.C. and one of them being Clause 7 of Paragraph 102 which reads as follows: “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers 8 Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 8 / 9 under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1….. 2…… 3….. 4….. 5……. 6……. 7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 9 Patna High Court Cr.Misc. No.34461 of 2011 (6) dt.09-12-2013 9 / 9 As per the complaint petition, the money was given to the petitioner on 24.12.2005 but the complaint was filed on 7.2.2008. The delay in lodging the complaint further clouds the accusation levelled in the complaint. In view of the above discussion, this Court is of the view that allowing such proceeding to continue will be an abuse of the process of Court. Hence, in the interest of justice, the order of cognizance dated 05.03.2010 passed by the learned SDJM, Kaimur at Bhabhua, including the entire prosecution of Complaint Case No. 147 of 2008 with regard to the petitioner is hereby quashed. This application is accordingly allowed. Shageer/Anil/ (Dinesh Kumar Singh, J)