Prem Ranjan Mani Pathak, aged about 45 years, S/o Basisth Mani Pathak, R/o 06 v. 1. The State of Jharkhand 2. Binod Yadav, aged about 50 years, S/o
Case Details
1 Cr.M.P. No. 2887 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2887 of 2022 Prem Ranjan Mani Pathak, aged about 45 years, S/o Basisth Mani Pathak, R/o 06, Near St. Francis School, 504, Sushila Apartment B Block, Lowadih, P.O.- Lowadih, P.S.- Namkum, Dist.- Ranchi (Jharkhand) ........Petitioner Versus 1. The State of Jharkhand 2. Binod Yadav, aged about 50 years, S/o, Shri Dwarika Yadav, R/o Purnanagar Gadi, Shrirampur, P.O. + P.S.- Giridih, Dist.- Giridih, at present Manager, Balajee Hitech Rolling Pvt. Ltd., Chatro Gadi, Shriramp;ur, P.O. + P.S.- Giridih, Dist.- Giridih ….. Opposite Parties For the Petitioner For the State For the Opp. parties : Mr. Shadab Eqbal, Adv. : Mr. Shiv Shankar Kumar, Addl.PP : Mr. Amit Kr. Das, Adv. Mr. Sankalp Goswami, Adv. Mr. Kamdeo Pandey, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding as well as the order of cognizance dated 07.07.2022 passed by learned SDJM, Giridih in connection with Complaint Case no. 794 of 2022 arising out of Giridih (Muffasil ) P.S. Case no. 235 of 2019 whereby and where under learned SDJM, Giridih found sufficient material available in the record to proceed against the petitioner for having committed the offence punishable under Section 406 of IPC . 3. The allegation made in the complaint is that the petitioner was working as an agent of M/s Balajee Hitec Rolling Pvt. Ltd. and he used to sell his product of iron rods on payment of commission of Rs. 500 per ton and undisputed fact remains that subsequently, an 2 Cr.M.P. No. 2887 of 2022 agreement was entered into between the petitioner and the said M/s Balajee Hitec Rolling Pvt. Ltd. on 23.05.2019 and as per the terms and condition of which, the petitioner was to procure orders and postdated cheques from the purchasers of the company, were to be collected by the petitioner on behalf of the company and the company was to supply the materials to the purchasers. The allegation against the petitioner is that the petitioner procured orders on behalf of the company M/s Balajee Hitec Rolling Pvt. Ltd., but instead of obtaining cheques, as per the terms of the agreement, the petitioner collected cash to the tune of Rs. 33,50,578/- from eight different buyers of the iron rod of the M/s Balajee Hitec Rolling Pvt. Ltd. and dishonestly, misappropriated the said amount. The informant – opp. party no.
Legal Reasoning
2 first lodged written report and basing upon that, Giridih (Muffassil ) P.S. Case no. 235 of 2019 case was registered and police took up the investigation of the case and after conclusion of the investigation, the police submitted Final Form mentioning that the dispute between the parties is a civil dispute and did not send up the petitioner for trial. The informant filed a protest petition, which was registered as Complaint Case No. 794 of 2022 by SDJM, Giridih, and learned SDJM, Giridh basing upon the materials available in the record, ie. the complaint, the statement on Solemn Affirmation of the complainant and the statement of the enquiry witnesses, found that there is sufficient materials in the record to proceed against the petitioner, for having committed the offence punishable under Sections 406 of IPC and passed the order for issuance of process upon the petitioner. 4. It is submitted by learned counsel for the petitioner that the allegation against the petitioner is false and the allegation constitute at best, mere breach of contract and the same itself is not sufficient ground to give rise to a criminal proceeding. It is further submitted that the dispute between the parties is purely a civil dispute. 5. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corporation vs. NEPC India 3 Cr.M.P. No. 2887 of 2022 Limited & Ors. reported in MANU SC 3152 2006 , it is submitted by learned counsel for the petitioner that there is prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors and there is also an impression, that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. It is further submitted that in this case, the criminal prosecution of the petitioner, is unwanted. 6. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Binod Kumar vs. State of Bihar and Another reported in 2014 8 Supreme 112, para 18 of which interalia reads as under :-
Decision
“18. xxxxx To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” and submits that in this case also, the ingredients under Section 406 is not made out. 7. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of The State of Gujarat vs. Jaswantlal Nathalal reported in AIR 1968 SC 700, para 8 of which reads as under :- “8.The term "entrusted" found in Section 405 I. P. C. governs not only the word "with the property" immediately following it but also the words "or with any dominion over the property" occurring thereafter-see Velji Raghavji Patel v. State of Maharashtra 1965-2 SCR 429 = (AIR 1965 SC 1433). Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust-see Jaswantrai Manilal v. State of Bombay 1956 SCR 483 at pp. 498 500 = (AIR 1956 SC 575 at pp. 582 583). The expression entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fudiciary, relationship between them. A mere transaction of sale cannot amount to an entrustment. It is true that the government had sold the cement in question to BSS solely for the purpose of being used in connection with the construction work 4 Cr.M.P. No. 2887 of 2022 referred to earlier. But that circumstance does not make the transaction in question anything other than a sale. After delivery of the cement, the government had neither any right nor dominion over it. If the purchaser or his representative had failed to comply with the requirements of any law relating to cement control, he should have been prosecuted for the same. But we are unable to hold that there was any breach of trust.” and submits that there is no allegation of entrustment in this case, hence, the offence under Section 506 of IPC is not made out. 8. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Deepak Gaba & Ors. Vs. State of Uttar Pradesh & Anr. reported in 2023 Live Law (SC) 3, wherein Hon’ble Supreme Court of India has inter alia has held that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs and submits that in this case, no criminal wrong, has been made out and learned SDJM ought not have found prima facie case for the offences punishable under Section 406 of IPC against the petitioner. 9. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Anand Kumar Mohatta & Ors. vs. State (Govt. of NCT of Delhi) Department of Home & Ors. reported in MANU/SC/1281/2018, wherein Hon’ble Supreme Court of India relied upon and approbated the said judgment, passed in the case of Indian Oil Corporation vs. NEPC India Ltd. & Ors. (supra) and also the case of State of Haryana vs. Bhajan Lal reported in 1992 Supp (1) SCC 335. 10. Learned counsel for the petitioner then relied upon the judgment of the Hon’ble Supreme Court of India in the case of Madhavrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrojirao Angre & Ors. reported in MANU/SC/0261/1988, wherein, in the facts of that case, as facts of the case, constituted a civil wrong, and the ingredients of the criminal offence were wanting, the Hon’ble Supreme Court of India quashed the criminal prosecution against the appellants of that case. 5 Cr.M.P. No. 2887 of 2022 11. Learned counsel for the petitioner also relied upon the judgment of this Court of India in the case of Saurav Ghose Chouwdhary vs. The State of Jharkhand & Ors. passed in CrMP No. 2584 of 2022, para 9 of which of reads as under:- “9. So far as the offence punishable under Section 406 of Indian Penal Code is concerned, it is a settled principle of law; that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused. It must also be shown that the accused dishonestly disposed of the same in some way or dishonestly retained the same as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663, para 18 of which reads as under :- “18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” (Emphasis supplied) and submits that as in this case, there is no allegation against the petitioner, of dishonestly, retaining the money, hence, no criminal offence is made out against the petitioner, hence, it is submitted that the entire criminal proceeding as well as the order of cognizance dated 07.07.2022 passed by learned SDJM, Giridih in connection with Complaint Case no. 794 of 2022 arising out of Giridih (Muffassil ) P.S. Case no. 235 of 2019 be quashed and set aside. 12. Learned Addl.PP and learned counsel for the opp. party no. 2 on the other hand, vehemently, opposes the prayer for quashing the entire criminal proceeding as well as the order of cognizance dated 07.07.2022 passed by learned SDJM, Giridih in connection with Complaint Case no. 794 of 2022 arising out of Giridih (Muffassil ) P.S. Case no. 235 of 2019. Learned counsel for the opp. party no. 2 draws attention of the court to the Illustration B and C of Section 405 of the IPC, which reads as under :- 6 Cr.M.P. No. 2887 of 2022 Illustrations “(b) A is a warehouse-keeper. Z, going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust. (c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.” and submits that the allegations made in this case are squarely covered by the said two illustrations and the contention of the petitioner that the allegations against him are false, can be determined only in a full dress trial, but at this stage, certainly, the order dated 07.07.2022 cannot be quashed by considering the defence and entering into the roving enquiry by this court, hence, it is submitted that this criminal miscellaneous petition, being without any merit be dismissed. 13. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that a particular occurrence, may constitute a civil wrong as well as the offence punishable by penal law. It is also a settled principle of law, that if an occurrence gives rise to a civil wrong as well as the criminal offence, merely because a civil remedy is available to the complainant, the criminal case cannot be quashed. 14. Now coming to the facts of the case, there is direct and specific allegation against the petitioner, that the petitioner with dishonest intention, in violation of the terms and conditions of the undisputed agreement entered into between the complainant and the petitioner, received cash amount from different purchasers of M/s Balajee Hitec Rolling Pvt. Ltd., instead of receiving cheques, drawn in favour of M/s Balajee Hitec Rolling Pvt. Ltd., and dishonestly, retained the same. 7 Cr.M.P. No. 2887 of 2022 15. Considering the allegation, if the same are treated to be true in its entirety certainly, all the ingredients of Section 405 of IPC which defines criminal breach of trust and for commission of which, punishment has been provided for in Section 406 of IPC is made out as there is allegation against the petitioner of having been in dominion over the property of the complainant –informant having received the same from the customers of the complainant, the petitioner dishonestly, retained the same. Hence, this court is of the considered view that this is not a fit case where the entire criminal proceeding as well as the order of cognizance dated 07.07.2022 passed by learned SDJM, Giridih in connection with Complaint Case no. 794 of 2022 arising out of Giridih (Muffassil ) P.S. Case no. 235 of 2019 be quashed and set aside. 16. Accordingly, this criminal miscellaneous petition, being without any merit is dismissed and the interim order, if any, passed earlier stands vacated. 17. The Registry is directed to intimate the court concerned forthwith. High Court of Jharkhand, Ranchi Dated, the 17th January, 2024 Smita /AFR (Anil Kumar Choudhary, J.)