Nand Lal Mandal son of Late Nirmal Mandal, resident of village v. and P.O. Suriya P.S. Suriya
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 528 of 2017 1. Devika Biswas D/O Late Parmanand Biswas. 2. Biswanath Biswas son of Late Parmanand Biswas. Both residents of Village and P.O. Sariya P.S. Sariya (Bagodar) District Giridih. 1. The State of Jharkhand 2. Nand Lal Mandal son of Late Nirmal Mandal, resident of village Versus and P.O. Suriya P.S. Suriya (Bagodar) District Giridih. … … Petitioners … … Opposite Parties --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. Anjani Kumar Singh, Advocate : None. For the Petitioners For the State For the Opp. Party No.2 : Mr. Suraj Kumar, Advocate --- 13/29.08.2024 1. 2. Heard the learned counsel for the parties. This revision petition is directed against the order dated 25.02.2017 whereby the Learned Chief Judicial Magistrate, Giridih has rejected the prayer for discharge of the petitioners. The case arises out of a protest petition arising out of Bagodar P.S. Case No. 05 of 2004, T.R. No. 230 of 2017. 3. The learned counsel for the petitioner while challenging the
Facts
impugned order has given the background of the case and submitted that the complainant had lodged an FIR being Bagodar P.S. Case No. 05 of 2004 against three accused persons namely Indrani Biswas, Devika Biswas and Biswanath Biswas and the police after investigation submitted final form stating that the case was false and there was an illegal device to grab the valuable property of the accused persons. The informant filed protest cum complaint petition, the court accepted the final form and treated the protest petition as a complaint case and after the enquiry summoned three accused persons for offence under section 406 of the Indian Penal Code. 1 4. During the course of argument, it has been submitted by the
Legal Reasoning
that prima facie, the case under section 406 of the Indian Penal Code was made out and therefore, the petition seeking discharge was rightly rejected. 8. 9. Nobody appears on behalf of the State. The relevant paragraph of the impugned order of the learned court in TR No. 230 of 2017 dated 25.02.2017 is quoted as under: - "In view of the submissions made on behalf of both the parties, I scrutinized the materials on the record. On the perusal of the record, it transpires that after the submission of the final form by the police, complainant had filed a protest petition, which was registered as complainant had filed a protest petition, which as registered as complaint case and the court proceeded to make enquiry under the provision of section 200 to 204 Cr. P.C. It appears that vide order dt. 21.09.2005, the court on the consideration of the complaint petition, statement of the complainant on oath and statement of the witnesses examined during enquiry came to the conclusion that prima facie case u/s 406 IPC was made out against the accused persons named in the complaint petition and hence, summoned the accused to stand trial. After the appearance of the accused persons, the complainant was directed to produce and examine witnesses u/s 244 Cr.P.C. and thereafter, the 3 complainant examined two witnesses including himself at the stage of before charge evidence. CW1 Nandlal Mandal has stated that he had entered into an agreement with the accused for the purchase of 16 decimals land of khata no. 200 plot no. 100 and 101 on a sale consideration amount of Rs. 30 lac and had also paid Rs. 1 lac as the earnest money. He stated that Indrani Vishwash had signed the agreement on behalf of her sister Dewika Vishwas and brother Vishwanath Vishwash and after agreement, he contacted Indrani Vishwash and Dewika Vishwash along with case and draft of rest consideration amount and requested the accused persons to execute the sale deed but the accused persons told him that they would sale the land only if the complainant agreed to pay another Rs. 10 lac for such sale and transfer of land. The complainant has further alleged that he was not ready to increase the consideration amount and therefore, requested the accused to return the advance Rs. 1 lac paid by him at the time of agreement but the accused persons did not return the said amount… …Now, averting to the case in hand, it appears that there is allegation and evidence on the record that accused neither returned the amount of Rs. 1 lac taken as advance nor were inclined to transfer the land after receiving balance consideration by executing registered sale deed in favour of the complainant…” 10. After hearing the learned counsel for the parties and upon going through the materials, this Court finds that in the solemn affirmation the complainant has stated regarding the details of the property and he has stated that on 24.06.2003 an amount of Rs. 1 lac was paid and in one document Indrani Biswas had stated that she received Rs. 1 lac in cash as advanced money for the sale of the property and upon payment of the remaining amount the agreement of the sale deed will 4 be executed and when the accused persons refused to execute the sale deed, the complaint case was filed under sections 406/418/420/ 465/467/471/120(B) of the Indian Penal Code but the cognizance was taken only under section 406 of the Indian Penal Code against all the three accused persons. Admittedly Indrani Biswas who had entered into the agreement and received money has expired. It further appears that apart from giving payment of advanced money of Rs. 1 lac there was neither any further payment nor the property was handed over to the complainant and the primarily grievance of the complainant was that the accused persons had refused to execute the sale deed in connection with the property. 11. In the judgment passed by the Hon’ble Supreme Court reported in Criminal Appeal No. 3020 of 2024 decided on 22nd July, 2024 Radheyshyam & Ors. V. State Of Rajasthan & Anr. the cause of action was that the concerned High Court had refused to quash the FIR for alleged offence under section 420 and 406 of the Indian Penal Code and the fact was that the appellants had entered into an agreement to sale with respect to certain property and a certain advanced amount was paid but the sale deed was not executed and consequently the FIR was instituted. 12. The Hon’ble Supreme Court has considered ingredients for constituting offence under section 420 as well as under the basic section 405 of the Indian Penal Code. With respect to offence under section 406 IPC, it has been held in paragraph 11 that for constituting an offence punishable under section 406 of the Indian Penal Code the following ingredients must be present:- “11. For an offence punishable under Section 406, IPC, the following ingredients must exist: i. The accused was entrusted with property, or entrusted with dominion over property; ii. The accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or 5
Arguments
learned counsel for the petitioner that Indrani Biswas has expired (this fact is not being disputed by the opposite party No. 2) and therefore, the present petition has been filed by only remaining two accused namely Devika Biswas and Biswanath Biswas. The learned counsel submits that the entire allegation arises out of one unregistered agreement entered into between the complainant and Indrani Biswas for sale and transfer of land for total consideration of amount of Rs. 30 lacs and it is alleged that Rs. 1 lac was paid to Indrani Biswas as earnest money and the remaining money was to be paid later on. 5. He submits that there is no entrustment of property involved in the present case. The entire dispute arises out of agreement of sale agreement entered into between the complainant and Indrani Biswas which is an unregistered agreement. Admittedly the petitioners before this Court are brother and sister of Indrani Biswas but they are neither party to the said unregistered agreement nor have anything to do with the same. He has submitted that instead of filing a suit for specific performance of contract, the criminal case was filed by alleging that the accused has committed offence of criminal breach of trust by dishonestly misappropriating the advance money of Rs. 1 lac in lieu of the agreement and it has been alleged that the accused neither executed registered deed of sale nor returned advanced money of Rs. 1 lac. 6. The learned counsel submits that it is an admitted fact on record that there is no further involvement of transfer of money over and above Rs. 1 lac and the amount of Rs. 1 lac was given to Indrani Biswas and it was Indrani Biswas only who entered into the unregistered agreement. The learned counsel submits that the learned court while refusing to discharge has simply recorded that there is allegation and evidence on record that the accused neither returned Rs. 1 lac taken as advance nor were inclined to transfer the land after receiving balance consideration by executing registered sale deed in 2 favour of the complainant and on this ground alone the petition seeking discharge has been rejected. 7. The learned counsel appearing on behalf of the opposite party No. 2 has opposed the prayer and has relied upon the judgment passed by the Hon’ble Supreme Court in the case of State of Gujarat Vs. Dilipsinh Kishorsinh Rao reported in 2023 LiveLaw (SC) 874 and has been particular referred to paragraph 7 thereof to submit that at the stage of discharge the defence of the accused is not to be taken into consideration. He submits that the statement of the witnesses has been recorded by the learned court and the learned court was of the view
Decision
disposed of that property or wilfully suffer any other person to do so; and iii. Such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 13. The Hon’ble Supreme Court observed that the appellants were not entrusted with any property by the complainant and the payment made cannot be said to be entrustment. The Hon’ble Supreme Court further observed that additionally merely because the appellants were refusing to register the sale it did not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of property and thereby the criminal breach of trust cannot be said to have been made out. Paragraph 12 and 13 of the judgement are quoted as under: " 12. In the present case, the appellants were not entrusted with any property by respondent no.2 – complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out. 13. Therefore, the ingredients of none of the offences alleged in the FIR are made out against the appellants and thus, no offence can be said to have been committed by them. The act of the appellant at best constitutes a civil wrong and does not call for any criminal action against them. A civil wrong cannot be given a criminal colour merely to coerce the appellants into 6 registering the sale. The judicial process cannot be used as a tool to enforce specific performance of an agreement. Respondent no. 2 has ample remedies under the civil law and he has already resorted to the same by filing a civil is pending suit adjudication before the relevant forum. Thus, such a criminal proceeding cannot be allowed to continue." specific performance which for 14. This Court finds that the present case is squarely covered by the aforesaid judgment passed by the Hon’ble Supreme Court when it comes to alleged offence under section 406 of IPC. In the present case also an advance money of Rs. 1 lac was said to have paid in connection with sale/purchase of land and Indrani Biswas (since deceased) was said to have entered into an unregistered agreement of sale and it was alleged that the accused persons refused to execute the sale deed. Payment of advanced money for purchase of land cannot be said to entrustment in view of the judgment passed by the Hon’ble Supreme Court. The dispute essentially is of a civil nature. This court finds that the aforesaid aspect of the matter has not been properly considered by the learned court while refusing to discharge the petitioners. This court is of the considered view that the learned court has not considered that the basic ingredients of offence under section 406 was not satisfied and that the dispute was essentially in the nature of civil dispute seeking to enforce an agreement of sale entered with Indrani Biswas (since deceased). 15. Consequently, the impugned order refusing to discharge the petitioners for alleged offence under section 406 of IPC is set-aside and the petitioners are discharged in connection with protest petition arising out of Bagodar P.S. Case No. 05 of 2004, T.R. No. 230 of 2017. 16. Let a copy of this order be communicated to the court concerned through ‘FAX/E-mail’. Rakesh/- (Anubha Rawat Choudhary, J.) 7