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Sumit Vyas vs The State Of Madhya Pradesh on 15 November, 2017

THE HIGH COURT OF MADHYA PRADESH
MCRC-14438-2017
(SUMIT VYAS Vs THE STATE OF MADHYA PRADESH)

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Jabalpur, Dated : 15-11-2017

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Dr. Anuvad Shrivastava, learned counsel for the petitioner.

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Shri A.P. Singh, learned G.A for the respondent/State.

Heard.

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This petition under Section 482 Cr.P.C has been filed to invoke
the inherent jurisdiction of this Court and to quash the proceeding of
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F.I.R at Crime No. 1194/2012, registered at Police Station Gohalpur
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for offence under Sections 420, 406 of I.P.C and its consequential
proceedings.

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The prosecution story in brief is that on 21.09.2012, Shraddha
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Tripathi lodged a complaint before the Police Station Gohalpur that
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she has been working in a private concern. On 09.05.2012, she had
gone to Lucknow to appear in an examination. The petitioner- Sumit
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Vyas is his cousin brother. Before leaving for Lucknow, she had given
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the keys of her house to the petitioner for watching her house. On
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08.06.2012, she returned from Lucknow. She found the jewelery, three
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gold rings in which diamond is fitted (of different weights) one gold
chhalla, one gold ring having two stones, a pair of gold tops, cash
Rs.10,000/-, total worth Rs.2,05,000/- were found missing. When she
asked the petitioner- Sumit Vyas about the missing of these jewelery,
cash and other items, he told that he met with an accident. Therefore,
he had given the jewelery to someone and promised to return it. But he
did not return the same and was avoiding the complainant. Hence, the
complainant lodged the F.I.R at Crime No. 1194/2012 for offence
under Sections 420, 406 of I.P.C at Police Station Gohalpur.

The petitioner has challenged the registration of the crime on the
ground that the investigation was completed within twenty four hours.
F.I.R was lodged after about three months. The jewelery shop owner

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has denied having received any gold jewelry from the petitioner. No

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property has been recovered. There is no element of cheating and

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fraudulent inducement for commission of the offence under Section
420 of I.P.C. There is no enstrument of the property to the petitioner.

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Therefore, offence under Section 406 of the I.P.C is also not made out.

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Counsel for the petitioner placed reliance on Velji Raghavji
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Patel Vs. The State of Maharashtra, AIR 1965 SC 1433, wherein it
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has been held that:-

“Penal Code (1860), Ss. 405, 409- Criminal breach of trust –

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Entrustment of dominion over property is essential- Dominion of
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partner over partnership asset- No entrustment unless there is special
agreement- Agreement authorizing working partner to recover money
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and to utilize recoveries for partnership business- Failure to deposit
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money in bank- Not an offence under S. 409, I.P.C.”

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Counsel for the petitioner also placed reliance on Sardar Singh
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Vs. State of Haryana, 1978 CAR 31 (SC) wherein Hon’ble the Apex
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Court has held that:-

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“Penal Code, 1860- Secs. 409 405- Offence of criminal
breach of trust- Accused was a Patwari- He was entrusted with a
receipt book- Not returning the same after suspension- Entrustment
proved but evidence of dishonestly misappropriating or converting the
receipt book to his own use not established- Mere failure to return the
property does not make any such offence.”

Reliance has also been placed on State of Karnataka Vs. L.
Muniswamy and others, 1977 CRI. L.J. 1125, wherein it has been
held that:-

“In the exercise of the wholesome power under S 482, the Court
is entitled to quash a proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an abuse of the process

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of the Court or that the ends of justice requires that the proceeding

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ought to be quashed.”

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On behalf of the respondent/State, it is argued that the petitioner
is the person who was entrusted with the “keys” of the house. That is
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entrustment of the house. It is sufficient to constitute entrustment of
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the property stolen. The complainant has alleged against the petitioner
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in her statement under Section 161 Cr.P.C also.

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The statement of Afsan shows that the petitioner has admitted
before the police that when Shraddha Triapthi had gone to Lucknow,
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she had given the keys to the petitioner. The ornaments which include
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the gold rings etc was taken away by the petitioner and given to a
Jewelery at Khermai Jewelers, Hanumantal. Though Sitaram Soni has
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stated that he did not know petitioner- Sumit Vyas and he has never
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seen him. But the statement of Samir Soni shows that Sumit Vyas had
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made an extra judicial confession before him that few months back, he
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had a conversation with Sumit Vyas. He told him that his mother was
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not well. Therefore, she was admitted in the Metro Hospital. He also
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told him that his mother’s jewelery is available with him and he can
help him to dispose of the ornaments. He had also told him that he
sold the gold ornaments one by one to Khermai Jewelers. He
accompanied him to the jewelery shop for disposal of the jewelery.
But he do not know from where he received the ornaments.

This statement indicates that petitioner had disposed the
jeweleries. The prosecutrix has submitted all the bills of the
jeweleries.

At the stage of framing of charge prima facie evidence has to be
seen, whether the case is beyond reasonable doubt is not to be seen at
this stage. If the Courts comes to the conclusion that the commission
of offence is a probable consequence, the Court would be at liberty to

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frame charges.

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The statement of Shraddha Tiwari shows that she handed over

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the “keys” of the house to the petitioner thereby entrusted the whole
property kept in the house to the petitioner. The petitioner disposed the
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gold ornaments, one by one. It is not a case where the allegations
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against the petitioner are patently absurd and inherently improbable.

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The High Court will not enter into inquiry of the disputed facts.

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In such circumstances, inherent power cannot be invoked to
quash the F.I.R. This petition is dismissed.

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(SUSHIL KUMAR PALO)
JUDGE
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Digitally signed by AWINASH
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CHANDRA
Date: 2017.11.17 18:09:34 +05’30’

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