High Court
Case Details
Neutral Citation No. - 2024:AHC:151013 Court No. - 74 Case :- APPLICATION U/S 482 No. - 16761 of 2024 Applicant :- Vinod Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Kr. Srivastava Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J. 1. Sri Pradumn Kumar Tripathi, Advocate appearing on behalf of Sri Sanjay Kumar Srivastava, learned counsel for applicant, who was held up due to heavy rain, was initially hesitant, being a young lawyer, to argue the case, however, on encouragement given by fellow Advocates and Court, he drawn attention of this Court on complaint, statements recorded under Sections 200 and 202 Cr.P.C., impugned summoning order dated 24.03.2021, memo of revision and impugned revisional order dated 23.01.2024 passed by Additional Sessions Judge (Fast Track Court), Court No. 1, Bulandshahr, whereby revision was rejected.
Legal Reasoning
2. Learned counsel for applicant submits that it is the case of complainant that he has handed over an amount of Rs. 64,000/- to applicant as a loan with assurance that it will be returned back very soon. However, it was not returned and in lieu of aforesaid amount a cheque was issued by applicant in favour of complainant but that was got dishonourned. Complainant has not initiated any proceedings under Section 138 Negotiable Instruments Act and instead he approached the concerned Court of Magistrate by way of filing criminal complaint. 3. Learned counsel for applicant further submits that on basis of above facts ingredients of Section 406 IPC cannot be made out and for that he refers the judgments passed by Supreme Court in Deepak Gaba and others Vs. State of U.P. and another (2023) 3 SCC 423 and Radheyshyam and others vs. State of Rajasthan and another, 2024 SCC OnLine SC 2311, relevant part thereof are reproduced hereinafter: Deepak Gaba (supra) “15. For Section 405 IPC to be attracted, the following have to be established: (a) the accused was entrusted with property, or entrusted with dominion over property; (b) the accused had dishonestly misappropriated or converted to their own use that
Decision
property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) 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. 16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646] 17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that “a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand”. A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.” Radheyshyam (supra) “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 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.” 4. Learned counsel further submits that only on basis of averment that applicant has stated on a phone call that “Jo Karna Hai Karlo”, offence of criminal intimidation, i.e., Section 506 IPC, cannot be made out since there was no intent to cause alarm. Learned counsel also refers following specific grounds taken in memo of revision that it was not considered by Revisional Court: “16. यह ककि ममा० अवर न्यमायमालय नने तथ्ययों व समाक्ष्ययों किमा समावधमाननी पपूवरकि अवललोकिन व कवश्लनेषण नहहीं ककियमा हहै तथमा धमारमा 204 द०प्र०ससं० Sufcient ground of proceeding हहै बगहैर Sufcient ground ककिसनी व्यकक्ति किलो अकभिययक्ति किने रूप मम तलब नहहीं ककियमा जमा सकितमा। 17. यह ककि समस्त पररसस्थकतयलो किने अनयसमार व समाक्ष्य किने आधमार पर किलोई अपरमाध कनगरमाननीकितमार किने कवरूद्ध धमारमा 406, 506 आई०पनी०सनी० नहहीं बनतमा हहै।" 5. I have considered the above submission and perused the material on record and found merit in above argument of learned counsel for applicant that on basis of contents of complaint and statements of complainant and witnesses recorded under Sections 200 and 202 Cr.P.C. offence under Sections 406 and 506 IPC cannot be made out as it appears that ingredients referred above are not satisfied. 6. Still considering that Revisional Court has not decided revision considering above referred specific grounds taken in memo of revision, therefore, by invoking inherent jurisdiction under Section 482 Cr.P.C., impugned revisional order dated 23.01.2024 passed by Additional Sessions Judge (Fast Track Court) Court No. 1, Bulandshahr in Criminal Revision No. 389 of 2023 (Vinod Sharma vs. Manpal Singh and another), arising out of Complaint Case No. 163 of 2019 (1889/2019) (Manpal vs. Vinod Sharma), under Sections 406, 506 IPC, Police Station Agauta, District Bulandshahr, is hereby set aside. The matter is remitted back to Revisional Court concerned to pass a fresh order within a period of three months from today, after hearing both parties and taking note of above observations. 7. The application is accordingly disposed of. 8. Registrar (Compliance) to take steps. Order Date :- 17.9.2024 AK