The State Of Bihar vs ORAL ORDER

Patna High Court Cr.Misc. No.8930 of 2013 (2) dt.27-09-2013 to leave station to attend some function and the keys were handed over to the hired two persons, including the petitioner, and when the informant came back he found that the two persons along with 28 bundles of coil were missing. On contacting the other person namely, Raju Kumar, he informed that the petitioner had given him four bundles of coil and told him to go away. The said four bundles of coil were handed over to the informant and this was also stated in writing by the said Raju Kumar. It is further stated that when the informant contacted the petitioner, he abused him and also told him that he would take care of him. The written statement of Raju Kumar was also handed over to the police along with F.I.R. Learned counsel for the petitioner submits that first and foremost, there is no allegation of any kind of entrustment to the petitioner. He submits that even in the F.I.R. there is no specific averment as to who out of the two persons was handed over the keys. It is also submitted that in the F.I.R. there is no mention with regard to any wire or other material being entrusted to the petitioner. Learned counsel submits that except for the statement made by Raju Kumar there is no other eye witness and thus the Court taking cognizance has not acted in the manner required and the same has been done without application of judicial mind in a mechanical manner. Learned counsel further Patna High Court Cr.Misc. No.8930 of 2013 (2) dt.27-09-2013 submits that the allegation is that the keys were handed over to the petitioner and the said Raju Kumar, and he not being made an accused, also makes the case against the petitioner weak since the statement of Raju Kumar against the petitioner cannot be accepted at the initial stage to be true so as to hold the petitioner only responsible and Raju Kumar innocent. Learned counsel submits that the Courts have held that to bring an offence under the ambit of Section 405 of the Indian Penal Code, there should be entrustment and misappropriation of property which, in the present case, is not proved. For such contention, learned counsel has relied upon the decisions of the Hon’ble Supreme Court in the case of S.W. Palanitkar v. State of Bihar reported in 2002 (1) PLJR 247 (SC), the relevant being at paragraphs 25 to 27 as well as in the case of Kailash Kumar Sanwatia v. State of Bihar reported in 2003 (4) PLJR 172 (SC). Learned counsel further relies on the decision of the Hon’ble Supreme Court in the case of Sardar Singh v. State of Haryana reported in 1977 CRI. L. J. 1158 in which it has been held that mere failure or omission to return property is not sufficient to constitute offence under Section 405 of the Indian Penal Code. Learned counsel further submits that the Hon’ble Supreme Court has also laid down the circumstances under which a criminal proceeding may be quashed at the very initial stage. He submits that the leading case in this regard in the Patna High Court Cr.Misc. No.8930 of 2013 (2) dt.27-09-2013 case of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335 which has been followed in the case of Asmathunnisa v. State of A.P. reported in (2011) 11 SCC 259. Learned counsel submits that in the present case also the case comes within the illustrations mentioned at paragraph-102 of the decision in the case of Bhajan Lal (supra). Learned counsel has also relied upon the decision of the Hon’ble Supreme Court in the Case of Madhavrao J. Scindia v. Sambhajirao C. Angre reported in (1988) 1 SCC 692 where it has been held that the Court may take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a proceeding to continue and while doing so also quash the proceeding where in the opinion of the Court chances of an ultimate conviction is bleak even though it may be at a preliminary stage. Learned A.P.P. for the State opposes the application and submits that the petitioner has moved this Court against the order taking cognizance where the Court concerned has only to see whether prima facie a case is made out. It is submitted that in the present case the written statement by Raju Kumar which states that the petitioner had given him four bundles of coil and sent him away after taking away the rest, clearly shows that the property (24 bundles of coil) were misappropriated by the petitioner. It is Patna High Court Cr.Misc. No.8930 of 2013 (2) dt.27-09-2013 further submitted that Section 405 of the Indian Penal Code contemplates that the property may either be entrusted or there should be dominion over the property and thus, in the present case, where there is specific statement in the F.I.R. that the keys were handed over to the petitioner and another person, does indicate that they were jointly entrusted with the same, and the other person having returned what was taken by him and the petitioner not returning, clearly proves misappropriation and thus it cannot be said that there was no criminal breach of trust by the petitioner. Thus, in that background, the entrustment coupled with the fact that they had dominion over the property inasmuch as the informant had handed over the keys to the premises where the coils were kept and the same having been taken away and later on refused to be returned by the petitioner, it cannot be said that there is no material for taking cognizance. Learned counsel submits that cognizance is taken of an offence and in the present case clearly an offence is made out. He further submits that at that stage the defence or the statement of the petitioner (accused) cannot be looked into by the Court. However, the petitioner still has an opportunity to place his case before the Court at the time of framing of charge and if the Court finds that there is no sufficient ground to proceed against the petitioner, it may discharge him. Considering the rival submissions, this Court finds Patna High Court Cr.Misc. No.8930 of 2013 (2) dt.27-09-2013 merit in the submissions of learned A.P.P. for the State. The Court having taken cognizance on the materials on record, according to this Court, cannot be said to have acted in a manner impermissible in law. It can also not be said that the order is mechanical without any application of mind. The decisions relied upon by learned counsel for the petitioner have been rendered in cases where ultimately a conviction for criminal breach of trust has been tested and held to be unsustainable after taking into consideration the evidence which had come during trial. Even in cases where the Hon’ble Supreme Court quashed the proceeding at the very initial stage, the case even if taken to be true at the face value had not disclosed the commission of any criminal offence. In the present case, this Court finds that the facts and circumstances are quite different with the facts and circumstances of the cases before the Hon’ble Supreme Court in the decisions relied upon by learned counsel for the petitioner. Thus, reliance on them is misplaced. Accordingly, this Court does not find any infirmity in the order under challenge. No case has been made out to warrant exercise by this Court of its inherent powers under Section 482 of the Code. The application stands dismissed. (Ahsanuddin Amanullah, J.) Anjani/-