Rohini Ranjana & Anr vs The State Of Bihar on 28 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.29271 of 2016
Arising Out of PS.Case No. -183 Year- 2015 Thana -KADAMKUAN District- PATNA

1. Rohini Ranjana, wife of Shri Punit Jain, resident of 302, Om Vihar Apartment,
P.S.- Kadamkuan, District – Patna.

2. Punit Jain, son of Shri Jitendra Kumar Jain, resident of 302, Om Vihar
Apartment, P.S. Kadamkuan, District – Patna.

…. …. Petitioners
Versus
The State of Bihar. …. …. Opposite Party

Appearance :

For the Petitioner/s :

Mr. Satyabir Bharti, Advocate
Ms. Aparna Arun, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
For the Opposite party no.2 : Dr. Amrendra Kumar, Advocate
Mr. Ravi Shankar Pankaj, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 28-08-2017

Heard Mr. Satyabir Bharti, learned counsel for the

petitioners, Dr. Amrendra Kumar, learned counsel, who has suo

motu appeared on behalf of the informant and Mr. Jharkhandi

Upadhyay, learned Additional Public Prosecutor for the State.

2. This application under Section 482 of the Code of

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

petitioners for quashing the order dated 07.11.2015 passed by the

learned Judicial Magistrate, 1st Class, Patna in Kadamkuan P.S. Case

No.183 of 2015 whereby after taking cognizance of the offences

punishable under Sections 406 and 420/34 of the Indian Penal Code,

the petitioners have been summoned to face trial.
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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3. The prosecution case has been instituted on the

basis of the fardbeyan of one Sanjya Kumar @ Pappu Singh

claiming himself to be the Vice-President, Janta Dal (U), Extremely

Backward Cell. He has alleged in his fardbeyan that for purchase of

a piece of land from the petitioners, he had paid a sum of

Rs.27,50,000.00, but even after receiving money, they did not

register the land in his favour and adopted a delaying tactics. He has

alleged that the petitioners fraudulently sold the land to someone

else and when he demanded back his money, they refused to return

the same and tried to intimidate him. He has further alleged that

when he visited the residence of the petitioners for demanding

money, they threatened him and took away his gold chain and cash

of Rs.10,000/- from his wallet. He has also alleged that petitioner

no.2 took out his revolver and terrorized him.

4. On the basis of the aforesaid allegations,

Kadamkuan P.S. Case No.183 of 2015 was registered under Sections

406, 420, 467, 468, 471, 341, 323 and 379/34 of the Indian Penal

Code against the petitioners and investigation was taken up.

5. On completion of investigation, the police

submitted their report under Section 173(2) of the Cr. P.C. on

28.07.2015 under Sections 420 and 406 of the Indian Penal Code

against the petitioners.

Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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6. It would be pertinent to note here that the police

disbelieved the part of the allegation of threat to life and snatching

away of gold chain and cash.

7. On the basis of the police report, the learned

jurisdictional Magistrate took cognizance of the offences under

Sections 406 and 420/34 of the Indian penal Code against the

petitioners and summoned them to face trial vide order dated

07.11.2015. The aforesaid order dated 07.11.2015 is under challenge

in the present application.

8. Mr. Satyabir Bharti, learned counsel for the

petitioners submitted that the entire allegations made against the

petitioners are based upon an agreement to sell dated 21.11.2013

executed between the petitioner no.1 and the informant Sanjay

Kumar. He has submitted that the agreement to sell, as contained in

Annexure-4 to the present application, would reveal that it was

executed for sale of 1 katha 10 dhurs of land for a total consideration

amount of Rs.41,50,000.00. It would further reveal that petitioner

no.2 had signed the said agreement in the capacity of a witness. He

has submitted that the informant had paid 27,50,000.00 only

whereas as per the terms of the agreement, the total consideration

amount of Rs.41,50,000.00 was to be paid within three months from

the date of agreement but, admittedly, the informant failed to make
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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the payment within the stipulated period of three months whereupon,

on his request, the agreement was extended upto 31.03.2014 by the

petitioner no.2 who was note even the executant of the agreement.

He has submitted that again the informant failed to make payment

up to 31.03.2014 whereupon the agreement was extended by the

petitioner no.2 upto 31.09.2014 and lastly upto 30.01.2015. He has

submitted that all such extensions were made by the petitioner no.2,

who was not the executants of the agreement and, thus, he was not

authorized to alter and terms and conditions of the agreement. He

has submitted that time being the essence of the agreement, since the

informant having failed to make payment of the consideration

amount and having sought as many as three extensions of more than

a year, the petitioner no.1 executed a sale deed of the land in

question with another person on 26.12.2014 upon realizing that the

informant has no intention to deposit the consideration amount in

near future. He has submitted that the extension of time by the

petitioner no.2 was being made in good faith at the request of the

complainant, as he is the husband of the petitioner no.1.

9. Mr. Bharti has further argued that in view of the

admitted facts no offence under Sections 406 and 420 of the Indian

Penal Code is made out. In this regard, he has placed reliance on the

decisions of the Supreme Court in the matter of Murari Lal Gupta
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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vs. Gopi Nath Singh [(2005) 13 SCC 699] and Nageshwar Prasad

Singh alias Sinha Vs. Narayan Singh [(1998) 5 SCC 694].

10. Per contra, Mr. Jharkhandi Upadhyay, learned

Additional Public Prosecutor for the State has submitted that there is

specific allegation against the petitioners that they took

Rs.27,50,000/- from the informant of the case for executing a sale

deed in respect of a particular piece of land, but they failed to

execute the sale deed in spite of the demand made by the informant

of the case in this regard. He has contended that such an allegation

would definitely attract the ingredients of the offences punishable

under Sections 406 and 420 of the Indian Penal Code.

11. Similarly, Dr. Amrendra Kumar, learned counsel

for the informant has submitted that the petitioner no.2 had made

endorsement in the agreement to sell in respect of extension of time

after taking approval from petitioner no.1. He has submitted that the

last extension for execution of the sale deed was made on 30th of

October, 2014 upto 30.01.2015, but the land, in question, was sold

on 26.12.2014 itself. He has submitted that petitioner is not correct

in saying that it was because of failure on the part of the informant

of the case that the sale deed was not executed rather the true fact is

that since petitioner no.1 was not available for execution of the sale

deed, petitioner no.2 himself took time so that his wife, who was
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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undergoing treatment, may come to Patna and execute the sale deed.

He has submitted that so far as the allegations made by the

informant in respect of the offences punishable under Sections 406

and 420 of the Indian Penal Code are concerned, were found true

during investigation of the case and based on the materials available

on record. The learned jurisdictional Magistrate has rightly taken

cognizance of the offences against the petitioners.

12. I have heard learned counsel for the parties and

perused the record.

13. In my opinion, the 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 Penal Code would be attracted.

14. Section 406 of the Penal Code prescribes

punishment for criminal breach of trust. Section 405 of the Penal

Code defines the offence of criminal breach of trust as under :

“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
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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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”.”

15. A careful reading of Section 405 of the Penal
Code 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.

16. It would, thus, appear that for the offences
punishable under Section 406 of the Penal Code, 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.

Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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17. The gist of the offence prescribed under Section

406 of the Penal Code 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.

18. The offence punishable under Section 420 of the

Penal Code 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 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.”

19. The offence of cheating is defined under Section

415 of the Penal Code, which reads as under :-

“415. Cheating —

Whoever, by deceiving any
person, fraudulently or dishonestly induces the
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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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”.”

20. To hold a person guilty of cheating as defined

under Section 415 of the Penal Code, 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.

21. 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 complainant parted with money would constitute offence

under Sections 406 and 420 of the Penal Code, is no more res

integra.

22. In Murari Lal Gupta (supra), 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
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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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 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,
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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seems to be an attempt to pressurize the
petitioner for coming to terms with the
respondent.”

(emphasis mine)

23. In Nageshwar Prasad Singh alias Sinha

(supra), a similar question fell for consideration before the Supreme

Court and a three Judge Bench relying upon illustration (g) of

section 415 of the Penal Code 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.

24. Coming back to the facts of the present case,

there is no dispute to the fact that the agreement was for sale of a

piece of land, which was owned by petitioner no.1 and, against

which, part payment was made by the informant. There is no

averment in the first information report so far as to infer any

fraudulent or dishonest inducement having been made by the

petitioners pursuant to which the informant parted with money.

There is also no dispute to the fact that petitioner no.1 was

competent to enter into an agreement to sell or could have

transferred title in the property to the informant. Merely because an
Patna High Court Cr.Misc. No.29271 of 2016 dt.28-08-2017
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agreement to sell was entered into, which agreement the petitioner

no.1 failed to honour, it cannot be said that the petitioners had

cheated the informant of the case. In view of the ratio laid down by

the Supreme Court in Murari Lal Gupta (supra) and Nageshwar

Prasad Singh alias Sinha (supra), the subsequent unwillingness of

the owner to complete the sell after receiving the earnest money

would give rise to a liability of civil nature and the criminal

prosecution would not be justified.

25. In that view of the matter, the application is

allowed. The impugned order dated 07.11.2015 passed by the

learned Judicial Magistrate, 1st Class, Patna in Kadamkuan P.S. Case

No.183 of 2015 is hereby quashed.

(Ashwani Kumar Singh, J.)
Sanjeet/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 04.09.2017
Transmission 04.09.2017
Date

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