Sairun Nisha vs State Of Bihar & Anr on 23 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.28426 of 2014
Arising Out of PS.Case No. -24397 Year- 2014 Thana -PATNA COMPLAINT CASE District-
PATNA

Sairun Nisha wife of Md. Hafeez, resident of Mohalla – Dariyapur, Koeri Tola,
P.S. – Pirbahore, Distt. – Patna.

…. …. Petitioner
Versus

1. The State of Bihar

2. Md. Naseem Son of Late Abdul Shakoor, resident of Mohalla – Dariyapur, Bari
Path, P.S. – Pirbahore, Distt. – Patna.

…. …. Opposite Parties

Appearance :

For the Petitioner/s : Mr. Alok Kumar Sinha, Advocate
Mr. Binod Bihari Sinha, Advocate
Mr. Indrajeet Bhusan, Advocate
For the State : Md. Ansural Haque, APP
For the Opposite Party No.2: Mr. Sanjeet Kumar, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 23-08-2017

Heard learned counsel for the petitioner, learned

Additional Public Prosecutor for the State and learned counsel for

complainant/opposite party no. 2.

2. This application under Section 482 of the Code of

Criminal Procedure (for short „Cr.P.C.‟) has been filed by the

petitioner for quashing the order dated 03.02.2014 passed in

Complaint Case No. 24397 (c) of 2014 by the learned Judicial

Magistrate, 1st Class, Patna whereby finding a prima facie case to

be made out under Sections 406 and 420 of the Indian Penal Code

(for short „IPC‟) against the petitioner, she has been summoned to

face trial.

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3. The complaint case, in short, is that on 08.09.2013, the

petitioner had executed an agreement for sale in favour of the

complainant and an earnest amount of Rs.5 lakh was received by

him on the day of execution of the agreement for sale and total

consideration amount was mutually agreed on Rs.33.50 lakh for the

piece of land and house measuring about 1.171 decimal constructed

over plot no.1244 situated in Mouza-Dariyapur, Kutubuddin Lane,

Koiri Tola, P.S.- Pirbahore, District- Patna.

4. As per terms and conditions, as laid down in the said

agreement for sale, the complainant had handed over four cheques,

each amounting to Rs.2.50 lakh. Thereafter, the complainant

requested the petitioner to execute absolute sale deed in his favour,

but the petitioner avoided to execute the same on one pretext or

other and, lastly, she flatly refused to execute the sale deed. Hence,

the present complaint was filed on 17.01.2014.

5. The complainant has been examined on solemn

affirmation. In course of inquiry conducted under Section 202 of

the Cr.P.C., three witnesses in support of the complainant were

examined. After holding inquiry, the learned Judicial Magistrate,

vide order dated 03.02.2014, summoned the petitioner to face trial

for the offences punishable under Sections 406 and 420 of the

Indian Penal Code. The said order is under challenge in the present
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application.

6. It is submitted by the learned counsel for the petitioner

that the petitioner has falsely been implicated in this case with an

ill motive and mala fide intention of the complainant to grab the

property of the petitioner illegally. He has submitted that the

contention of the complainant that he handed over four cheques

amounting to Rs.2.50 lakh each bearing cheque nos. 009966,

009967, 611480 and 611482 to this petitioner on 03.10.2013 is

completely false. He has submitted that no cheque was ever handed

over to the petitioner nor any amount was ever credited to her

account. He has further submitted that the falsity of the claim of the

complainant would be manifest from the fact that in the complaint

petition, the complainant has not given detail of the bank on which

the cheques were drawn. He has further submitted that the

complaint is silent about the fact that any amount was ever debited

from the account of the complainant and credited to the account of

the petitioner. He has submitted that it is true that agreement for

sale in favour of the complainant was executed on 08.09.2013 and

an earnest amount of Rs.5 lakh was received by the petitioner on

the day of execution of the agreement for sale, but the remaining

amount out of Rs.33.50 lakh was never paid to her. Thus, there was

no question of executing absolute sale deed in favour of the
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complainant.

7. Per contra, learned counsel for the complainant has

submitted that the evidence in respect of the payment of Rs.10 lakh

to the petitioner by way of four cheques would be laid before the

court in course of trial. He has submitted that the allegations made

in the complaint clearly attract the ingredients of the offences under

which cognizance has been taken. He has submitted that there is no

illegality in the order passed by the learned Judicial Magistrate

whereby the petitioner has been summoned to face trial.

8. Learned Additional Public Prosecutor for the State has

adopted the submissions made by the learned counsel for the

complainant.

9. I have heard learned counsel for the parties and

perused the record.

10. In my opinion, the first and foremost question, which

would arise in the present case is that even if the entire allegations

made in the FIR are taken at their face value and accepted in their

entirety, whether or not the ingredients of the offences punishable

under Sections 406 and 420 of the IPC would be attracted.

11. Section 406 of the IPC prescribes punishment for

criminal breach of trust. Section 405 of the IPC defines the offence

of criminal breach of trust as under :

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“405. Criminal breach of trust —

Whoever, being in any manner entrusted with
property, or with any dominion over property,
dishonestly misappropriates or converts to his
own use that property, or dishonestly uses or
disposes of that property in violation of any
direction of law prescribing the mode in which
such trust is to be discharged, or of any legal
contract, express or implied, which he has made
touching the discharge of such trust, or willfully
suffers any other person so to do, commits
“criminal breach of trust”.”

12. A careful reading of Section 405 of the IPC shows that

a criminal breach of trust involves the following ingredients:-

(a) a person should have been entrusted with
property, or entrusted with dominion over
property;

(b) that person dishonestly misappropriated or
converted to his own use that property, or
dishonestly used or disposed of that property or
willfully suffered any other person to do so;

(c) that such misappropriation, conversion, use or
disposal was in violation of any direction of law
prescribing the mode in which such trust was
discharged.

13. It would, thus, appear that for the offences punishable
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under Section 406 of the IPC, the prosecution must prove :-

(i) that the accused was entrusted with property

or with dominion over it; and

(ii) that he (a) dishonestly misappropriated it, or

(b) dishonestly converted it to his own use, or (c)

used it, or (d) disposed of it in violation of any

direction of law prescribing the mode in which

such trust was discharged.

14. The gist of the offence prescribed under Section 406 of

the IPC is misappropriation done in a dishonest manner. The first

part of the said offence involves the fact of entrustment, wherein an

obligation arises in relation to the property over which dominion or

control is acquired. The second part deals with misappropriation

which should be contrary to the terms of the obligation which is

created.

15. The offence punishable under Section 420 of the IPC

reads as under :-

“420. Cheating and dishonestly inducing
delivery of property.-

Whoever cheats and thereby dishonestly induces
the person deceived to deliver any property to
any person, or to make, alter or destroy the whole
or any part of a valuable security, or anything
which is signed or sealed, and which is capable
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of being converted into a valuable security, shall
be punished with imprisonment of either
description for a term which may extend to seven
years, and shall also be liable to fine.”

16. The offence of cheating is defined under Section 415

of the IPC, which reads as under :-

“415. Cheating —

Whoever, by deceiving any person, fraudulently
or dishonestly induces the person so deceived to
deliver any property to any person, or to consent
that any person shall retain any property, or
intentionally induces the person so deceived to
do or omit to do anything which he would not do
or omit if he were not so deceived, and which act
or omission causes or is likely to cause damage
or harm to that person in body, mind, reputation
or property, is said to “cheat”.”

17. To hold a person guilty of cheating as defined under

Section 415 of the IPC, it is necessary to show that the accused had

fraudulent or dishonest intention at the time of making the promise

with an intention to retain the property.

18. The question, whether failure to honour agreement to

sell without their being any allegation of fraudulent or dishonest

inducement having been made by the accused pursuant to which the
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complainant parted with money would constitute offence under

Sections 406 and 420 of the IPC, is no more res integra.

19. In Murari Lal Gupta vs. Gopi Nath Singh [(2005)

13 SCC 699] the Supreme Court observed as under:

“6. We have perused the pleadings of the parties,
the complaint and the orders of the learned
Magistrate and the Sessions Judge. Having taken
into consideration all the materials made
available on record by the parties and after
hearing the learned counsel for the parties, we are
satisfied that the criminal proceedings initiated
by the respondent against the petitioner are
wholly unwarranted. The complaint is an abuse
of the process of the court and the proceedings
are, therefore, liable to be quashed. Even if all the
averments made in the complaint are taken to be
correct, yet the case for prosecution under
Section 420 or Section 406 of the Penal Code is
not made out. The complaint does not make any
averment so as to infer any fraudulent or
dishonest inducement having been made by the
petitioner pursuant to which the respondent
parted with the money. It is not the case of the
respondent that the petitioner does not have the
property or that the petitioner was not competent
to enter into an agreement to sell or could not
have transferred title in the property to the
respondent. Merely because an agreement to sell
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was entered into which agreement the petitioner
failed to honour, it cannot be said that the
petitioner has cheated the respondent. No case for
prosecution under Section 420 or Section 406
IPC is made out even prima facie. The complaint
filed by the respondent and that too at Madhepura
against the petitioner, who is a resident of Delhi,
seems to be an attempt to pressurize the
petitioner for coming to terms with the
respondent.”

(emphasis mine)

20. In Nageshwar Prasad Singh alias Sinha Vs.

Narayan Singh [(1998) 5 SCC 694], a similar question fell for

consideration before the Supreme Court and a three Judge Bench

relying upon illustration (g) of section 415 of the IPC held that the

agreement for sale of land and the earnest money paid to the owner

as part of consideration and possession of land and the subsequent

unwillingness of the owner to complete the same gave rise to a

liability of civil nature and the criminal complaint was not

competent.

21. In Dalip Kaur Ors. Vs. Jagnar Singh [(2009) 14

SCC 696], the question for determination before the Supreme

Court was whether breach of contract of an agreement for sale

would constitute an offence under Sections 406 or section 420 of
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the IPC. After examining the facts of the case and the relevant

sections of the IPC, the Supreme Court held that an offence of

cheating would be constituted when the accused has fraudulent or

dishonest intention at the time of making of promise or

representation. A pure and simple breach of contract does not

constitute the offence of cheating. It further held that if the dispute

between the parties was essentially a civil dispute resulting from a

breach of contract on the part of the appellants by non-refunding

the amount of advance, the same would not constitute an offence of

cheating or criminal breach of trust.

22. Coming back to the facts of the present case, there is

no averment in the complaint to infer any fraudulent or dishonest

inducement having been made by the petitioner pursuant to which

the complainant parted with the money. It is also not the case of the

complainant that the petitioner does not have the property or that

the petitioner was not competent to enter into an agreement to sell

or could not have transferred title in the property to the

complainant. Merely because an agreement to sell was entered into,

which agreement allegedly the petitioner failed to honour, it cannot

be said that the petitioner has cheated the complainant.

23. Thus, in view of the ratio laid down by the Supreme

Court in Dalip Kaur Ors. vs. Jagnar Singh (Supra),
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Nageshwar Prasad Singh alias Sinha vs. Narayan Singh (Supra)

and Murari Lal Gupta vs. Gopi Nath Singh (Supra), I am of the

considered opinion that at best, it is a pure and simple case of

breach of contract, which would not attract the ingredients of the

offences under Sections 406 and 420 of the Indian IPC.

24. In view of the foregoing discussions, the very order of

cognizance is bad. Hence, summoning order dated 03.02.2014

passed by the learned Judicial Magistrate, 1st Class, Patna in

Complaint Case No. 24397 (c) of 2014 cannot be sustained.

Accordingly, the application is allowed. The impugned order dated

03.02.2014 passed in Complaint Case No. 24397 (c) of 2014 by the

learned Judicial Magistrate, 1st Class, Patna and the entire

subsequent proceedings arising therefrom are set aside.

(Ashwani Kumar Singh, J.)

Kanchan/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.08.2017
Transmission NA
Date

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