1. Sushil Kumar Singh @ Shushil Kumar Singh, aged about 72 years, S/o Raj v. 1. The State of Jharkhand 2. Ajit Kumar Singh, S/o Vrindavan Singh, R/o Sector
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 4327 of 2022 1. Sushil Kumar Singh @ Shushil Kumar Singh, aged about 72 years, S/o Raj Deo Singh, R/o Block A, Unit No. G-2, Vrindavan Apartment, Chira Chas, P.O. & P.S. –Chas, District –Bokaro, Jharkhand. 2. Rajni, aged about 35 years, D/o Rana Arun Kumar Singh, R/o H. No. 82 C, Near Shiv Mandir, Bhawanipur, P.O. & P.S. –Chas, District –Bokaro, Jharkhand. .... Petitioners Versus 1. The State of Jharkhand 2. Ajit Kumar Singh, S/o Vrindavan Singh, R/o Sector 3, Centre Market, Plot No.1, P.O. –Sector 3, P.S. –B.S. City, District –Bokaro, Jharkhand -827003. Opp. Parties …. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For the O.P. No.2
Legal Reasoning
: Mr. Baibhaw Gahlaut, Advocate : Mr. Subhneet Jha, Advocate : Mrs. Vandana Bharti, Addl. P.P. : Mr. Sanjeet Thakur, Advocate : Mr. Subhash Chandra Prakash, Advocate ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash and set aside the entire criminal prosecution in connection with Complaint Case No. 1542 of 2019 including the order dated 11.04.2022, passed by the learned Judicial Magistrate - 1st Class, Bokaro whereby and where under the learned Judicial 1 Cr.M.P. No.4327 of 2022 Magistrate -1st Class, Bokaro has found prima-facie case for the offence punishable under Section 406 of the Indian Penal Code. 3. The allegation against the petitioners is that the petitioners are inter-alia the owner of the flats and as per the agreement between the complainant who constructed the said flats that the common facilities like generator, lift, water pump, invertor, electricity connection is under the joint ownership of the purchasers of the flats and the company which constructed the said flats and the petitioners have to pay the expenses incurred in maintaining the said facilities proportionally to the company which constructed the said flats but though they paid such expenses till the year 2017 but thereafter they have stopped payment of the same and have dispossessed the complainant from the said common facility and taken the same to their custody. On the basis of the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses, the learned Magistrate found prima facie case for the offence punishable under Section 406 of the Indian Penal Code. 4. It is submitted by the learned counsel for the petitioners relying upon the Judgment of Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. & Ors. Vs. State of Uttar Pradesh & Anr. reported in (2024) SCC Online SC 2248, para -36 of which reads as under:- “36. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods 2 Cr.M.P. No.4327 of 2022 passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. [See : Lalit Chaturvedi v. State of Uttar Pradesh, 2024 SCC OnLine SC 171 & Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) v. State of Jharkhand, 2023 SCC OnLine Jhar 301]” (emphasis supplied) And submits that once the property passes to the purchaser from the seller when the goods are delivered, the purchaser cannot be said to be entrusted with the property of the seller. It is next submitted that in this case admittedly the property has been sold to the petitioner, hence it cannot be said that the petitioners were entrusted with any property and in the absence of any entrustment, the offence punishable under Section 406 of the Indian Penal Code cannot be made out. 5. The learned counsel for the petitioners next relies upon the Judgment of Hon’ble Supreme Court of India in the case of Central Bureau of Investigation, SPE, SIU (X), New Delhi Vs. Duncans Agro Industries Ltd. Calcutta, reported in 1996 (5) Supreme 462 and submits that it is a settled principle of law that in order to constitute the offence punishable under Section 406 of the Indian Penal Code, as observed in para-18 of that judgment, the property in respect of which criminal breach of trust can be committed, must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it 3 Cr.M.P. No.4327 of 2022 must be in other person and the offender must hold such property in trust for such other person for his benefit and it is further submitted that as in this case, the property admittedly is the joint property of the petitioners also, so in the absence of any entrustment, the offence punishable under Section 406 of the Indian Penal Code is not made out. 6. The learned counsel for the petitioners drawing attention of this Court to Section 23 of the Jharkhand Apartment (Flat) Ownership Act, 2011 submits that the same envisages that there shall be an Association of the Apartment (Flat) Owners for the administration of the affairs in relation to the Apartment (Flats) and the property appertaining thereto and for management of the common areas and facilities. So the complainant has no authority to realize any money as he is not anyway associated with the Association of Apartment (Flat) Owners. Therefore, otherwise also, the offence punishable under Section 406 of the Indian Penal Code is not made out. 7. The learned counsel for the petitioners next relies upon the Judgment of this Court in the case of Satyabhama Dubey @ Satyabhama Devi & Ors. Vs. The State of Jharkhand & Ors. reported in 2024 0 Supreme (Jhk) 171 and submits that therein this Court relied upon the Judgment of Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663, in paragraph-18 of which it has been reiterated by the Hon’ble Supreme Court of India that to 4 Cr.M.P. No.4327 of 2022 make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons but it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. It is next submitted by the learned counsel for the petitioners that in the absence of any allegation that the petitioners dishonestly retained the common facilities or dishonestly disposed of the same, even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out. It is next submitted by the learned counsel for the petitioners that the dispute is at best a dispute of civil nature and a cloak of criminal case has been tried to be given to it by the complainant for the purpose of wreaking vengeance. Hence, it is submitted that continuation of this criminal proceeding will amount to abuse of process of law. Hence, it is submitted that the prayer as prayed for by the petitioners in this criminal miscellaneous petition be allowed. 8. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as prayed for by the petitioners in this criminal miscellaneous petition and submits that the retention of the common facilities of the Apartment amounts to entrustment and as the petitioners have committed criminal breach of trust, this criminal miscellaneous petition being without any merit be dismissed. 5 Cr.M.P. No.4327 of 2022 9. 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 the admitted case of the complainant himself that the ownership of the common facilities of the Apartment Complex is both of the purchasers of the flats and upon the company which constructed the flats. In view of this admitted case of the complainant, certainly the alleged retention of the common facilities by the petitioners cannot be termed as entrustment and in the absence of entrustment; certainly the offence punishable under Section 406 of the Indian Penal Code is not made out. 10. So far as the non-payment of the expenses for running the common facilities is concerned, as per Section 23 of the Jharkhand Apartment (Flat) Ownership Act, 2011 which reads as under:- 23. Association of Apartment (Flat) Owners and bye-laws relating thereto: (1). There shall be an Association of Apartment(Flat) Owners for the administration of the affairs in relation to the Apartment(Flats) and the property appertaining thereto and for the management of Common areas and facilities. Provided that where any area has been demarcated for the construction of multistoried buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment (Flat) Owners in such demarcated area. (2). (3). (4). Xxxxx Xxxxx Xxxxx There has to be an Association inter-alia for administration of the common areas and facilities. Admittedly there is no such Association for, nor it is the case of the complainant that the complainant is part of 6 such Association. Under such Cr.M.P. No.4327 of 2022 circumstances, the complainant is no way entitled to any money to be received from the petitioners. So on this score also, the offence punishable under Section 406 of the Indian Penal Code is not made out. Further there is no allegation of dishonest misappropriation or dishonest retention against the petitioners, which as already indicated above is also essential to constitute the offence punishable under Section 406 of the Indian Penal Code. 11. Because of the discussions made above, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, the same will not constitute the offence punishable under Section 406 of the Indian Penal Code. Hence, continuation of this criminal case against the petitioners will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal prosecution in connection with Complaint Case No. 1542 of 2019 including the order dated 11.04.2022, passed by the learned Judicial Magistrate - 1st Class, Bokaro whereby and where under the learned Judicial Magistrate -1st Class, Bokaro has found prima-facie case for the offence punishable under Section 406 of the Indian Penal Code be quashed and set aside qua the petitioners only. 12. Accordingly, the entire criminal prosecution in connection with Complaint Case No. 1542 of 2019 including the order dated 11.04.2022, passed by the learned Judicial Magistrate -1st Class, Bokaro whereby and where under the learned Judicial Magistrate -1st Class, Bokaro has found prima-facie case for the offence 7 Cr.M.P. No.4327 of 2022 punishable under Section 406 of the Indian Penal Code is quashed and set aside qua the petitioners only.
Decision
In the result, this criminal miscellaneous petition is allowed. The interim order passed earlier vide order dated 20.12.2022 is vacated. Registry is directed to intimate the court concerned forthwith. 13. 14. 15. High Court of Jharkhand, Ranchi Dated the 30th September, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 8 Cr.M.P. No.4327 of 2022