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Dr.K.K.Tamrakar vs Dr. Shri Singh Vinay Yadav on 8 February, 2018

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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Miscellaneous Criminal Case No.157/2005

Dr.K.K.Tamrakar…………………………………………….Petitioner
Versus
Dr.Shri Vinay Singh Yadu and another……………Respondents

For the petitioner : Mr. Sanjay Ram Tamrakar, Advocate.

For Respondent : Mr Mukesh Shukla, Advocate.
no.1

For Respondent : Mr.Sharad Sharma, Government
no. 2 Advocate

******
Present: HON’BLE MR. JUSTICE ATUL SREEDHARAN
******

ORDER

(8.2.2018)

The present petition has filed by the petitioner

herein for quashing the order dated 16.12.2004 passed

by the Court of the learned Judicial Magistrate First

Class, Damoh, in Complaint Case No.1644/2004

whereby, upon the complaint filed by the respondent

no.1, cognizance of offences under section 120-B read

with sections 166 and 406 of the IPC was taken against

the petitioner and the co-accused persons.

The case against the petitioner has arisen on the basis of a

complaint preferred by the respondent no.1 on
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12.7.2004 under section 200 Cr.P.C. to take cognizance

of offences under sections 166, 409, 406 read with

section 120-B IPC. The petitioner herein was the

prospective accused No.1 in the complaint case and the

prospective accused Nos. 2 was the then Accountant in

the Office of the Chief Medical and Health Officer and

the prospective accused No.3 was the then Clerk in the

Receiving Section of the office of the Chief Medical and

Health Officer, Damoh.

According to the complainant, he retired from the post of

District Family Welfare Officer (Surgical Specialist), in

October 2001. The complainant/respondent no.1

further states that the petitioner and the other co-

accused persons were responsible for the release of the

General Provident Fund (hereinafter referred to as “the

GPF”) of the respondent no.1. It is further alleged that

the accused persons were delaying the payment of the

GPF on the alleged grounds of “missing deductions”.

The complainant further states that on 17.3.2004, there was

an order of the Accountant General of Madhya Pradesh

(hereinafter referred to as “AGMP”) bearing

No.85/Damoh/2861, a certified copy of which was

marked to the complainant and was received by him on
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19.3.2004. As per this order, the petitioner was to

release in part, the GPF payment accruable to the

respondent amounting to Rs.3,16,321/-. This order also

mentions about the missing deductions. It is the case

of the complainant that the amount was not paid

despite the order.

On 29.3.2004, the complainant sends a notice to the AGMP

and the petitioner No.1 relating to the missing

deductions. The complainant contends that the said

notice was received by the office of the petitioner on

31.3.2004. In response to the said notice, the

complainant is stated to have received the copy of the

letter dated 5.5.2004 issued from the Office of the

AGMP, which was addressed to the petitioner in which

the petitioner was directed to release the GPF amount

of the respondent no.1. The complainant further alleges

that the contention of the petitioner that the order

dated 17.3.2004 having not been received by his office

was incorrect as the complainant had gone to the office

of the petitioner and upon enquiry, he was informed by

someone there that the order dated 17.3.2004 has

been received by the office of the petitioner. The

complainant is stated to have cross-checked this fact by

going to the post-office and receiving information from
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the postman that the order dated 17.3.2004, which was

sent by registered post from Gwalior from the Office of

the AGMP, was delivered to the office of the petitioner.

The complaint has been preferred only on account of a delay

in the payment of the GPF which was ultimately

deposited in the account of the respondent No.1 on

1.7.2004, which is undisputed and accepted by the

learned counsel for the respondent No.1. However, the

learned counsel for the respondent No.1 and the State

while opposing the petition have submitted that the

amount ought to have come into the account of

respondent No.1 on 1.4.2004. Therefore, according to

the learned counsel for the respondent No.1 and the

State, the offences for which the cognizance has been

taken by the learned Court below is on account of the

delay in the non-payment of the GPF by three months.

In order to substantiate this, the attention of this Court

has been drawn to the impugned order of the learned

Court below dated 16.12.2004, which is from pages 71

to 73 of the petition. The grounds for taking cognizance

is laid out on page 72 wherein the learned Court below

held:

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“आववेदक नवे प. पपी 05 प पपी 07, 8 , प. पपी 012, 13,

15,17, 18,19, और 20 तथथा 22 कवे जजो दस्तथाववेज पवेश

ककयवे गए अववं प. पपी 023,24, कवे दस्तथाववेज सवे आववेदक

/ पररवथाददी कजो आववेदकगणजो नवे ररटथायरममेंट कवे पशथात जजो

रथाशश उसवे समय पर पथाप्त हजोनथा थपी , समय पर न दवे तवे हहए

उसवे उक्त रथाशश सवे ववंशचित रखथा.”

Thus, it is absolutely clear that the only ground for having

taken cognizance of the offences under sections 120-B

read with sections 166 and 406 IPC was on account of

a three month delay in the release of the GPF in favour

of the respondent No.1.

The learned counsel for the petitioner has drawn the

attention of this court to the police report, which is a

part of the original Court file, which has been

summoned by this Court, in which the police report also

states that the GPF amount was deposited into the

account of the respondent No.1 on 1.7.2004. This

report is dated 4.10.2004.

The only question that arises for consideration before this

Court is whether the aforesaid delay in deposit of the
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GPF amount by the petitioner, would constitute offences

under sections 406 and 166 IPC. Section 406 IPC is the

punitive section providing punishment for an offence of

criminal breach of trust. The substantive section laying

down the ingredients of the offence is section 405 IPC.

As per section 405 IPC, the primary pre-requisite for an

offence of criminal breach of trust is entrustment of

property or dominion over a property. Secondly, there

must be a dishonest misappropriation or conversion of

that property by the person in whom such property is

entrusted or thirdly there must be dishonest use or

disposal of the property in violation of any direction of

law prescribing the mode in which such trust is to be

discharged or of any legal contract, expressed or

implied, which the accused has made pertaining to the

discharge of such trust, or wilfully suffers any other

persons so to do, would deem to have committed an

offence of criminal breach of trust. With regard to cases

involving provident funds, explanations 1 and 2 to

section 405 are also relevant. Explanation 1 provides

for a person who is an employer, who deducts the

employee’s contribution from the wages payable to the

employee, to be credited to a provident fund or a family

pension fund, would be deemed to have been entrusted
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with the amount of the contribution so deducted by him

and where such a person makes default in the payment

of such contribution to the fund in violation of the law,

he would be deemed to have dishonestly used the

amount of the said contribution. Explanation 1 is ex

facie not applicable in this case as the petitioner herein

is not the employer. The employer is the State of

Madhya Pradesh and the entity which is vested with the

task of deducting the contribution of the respondent

no.1 towards provident fund, is the Office of the AGMP.

The petitioner has no say with regard to such

deductions.

As regards Explanation No.2, once again a person who is an

employer deducts the employees’ contribution from the

wages payable to the employees, ostensibly to be

credited to the Employees’ State Insurance Fund held

and administered by the Employees’ State Insurance

Corporation, would be deemed to have been entrusted

with the amount of the contribution so deducted by him

and where such a person makes a default in payment

of such contribution to the said fund in violation of the

Act, he would be deemed to have used dishonestly the

amount of the said contribution in violation of a

direction of law. Illustration “E” to section 405 IPC
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offers guidance in the interpretation of this section. The

said illustration relates to a revenue officer being

entrusted with public money and where such money is

to be paid into a certain Treasury is dishonestly

misappropriated by such officer, he would be guilty of

committing criminal breach of trust.

In this case, the undisputed facts reveal that the applicant’s

role falls in between the Accountant General’s Office

and that of the respondent No.1. His role is that of a

post office. The order to release the GPF fund amount

was issued by the AG Office on 17.3.2004. Thereafter,

upon its receipt it was the duty of the petitioner to

ensure that he gives his clearance to the Treasury and

the Treasury would thereafter deposit the amount into

the account of the respondent No.1. Nowhere in the

complaint is it alleged that the petitioner had

misappropriated the GPF amount due to the respondent

No.1 and converted it to his own use in contravention

of a direction of law, thereby causing loss to the

respondent No.1 and neither is it alleged that the

petitioner in conspiracy with anyone else has diverted

the funds accruable to the respondent no.1 to anyone

else, thereby causing an unlawful loss to the

respondent no.1 and an attendant gain to a third party.
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As stated hereinabove earlier, the only allegation is with

regard to the delayed disbursal of the GPF amount by

three months. As there is no allegation of any

misappropriation by the petitioner herein and in the

absence of any allegation that the amount of the

respondent no.1 which lay vested with the petitioner

was disposed of in any manner contrary to the dictates

of law. The allegations do not prima facie fulfil the

ingredients of section 405 IPC and, therefore, an

offence under section 406 IPC cannot be held

sustainable.

In the course of the arguments, the learned counsel for the

respondent no.1 has referred to a decision of the

Hon’ble Supreme Court in Bhargavan Pillai Vs. State

of Kerala (2004) 13 SCC 217. The learned counsel for

the respondent no.1 has drawn the attention of this

court to paragraph no.13 of the judgment wherein the

Supreme Court has held that for an offence of criminal

breach of trust all that needs to be shown by the

prosecution is entrustment. Once that is proved, it is

for the accused to establis how the property was dealt

with. This case primarily established a ratio on the

requirement of previous sanction under section 197

Cr.P.C. for an offence committed by a person in his
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capacity as a public servant. The observation relating to

criminal breach of trust is in the nature of an obiter

dicta which also, is binding upon this court. However,

the admitted facts of this case go to clearly reveal that

this was not a case of misappropriation but only a delay

that was caused in the disbursement of the GPF

amount. Under the circumstances, in the fact-premises

of the present case, the said judgment of the Supreme

Court in N.Bharvan Pillai would not be applicable.

The second judgment referred to by the learned counsel for

the respondent no.1 is Ajay Mehra Vs. Durgesh

Babu (2002) 9 SCC 709. In that case, the Hon’ble

Supreme Court held that the standard of evidence and

its appreciation at the stage of taking cognizance is

prima facie. At that stage, other materials ought not to

be considered and the trial court only needs to see

whether the allegations in the complaint prima facie

make out an offence. For the reasons stated

hereinabove, it is apparent that even if the complaint is

taken in its entirety, it is clear that the offence under

section 406 IPC is not made out as the amount which

was due to the respondent no.1 has undisputedly been

received by him. Thus, the prima facie evidence itself

for constituting an offence under section 406 IPC, was
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missing and, therefore, cognizance of the offence under

section 406 IPC ought not to have been taken in the

first place.

As regards the offence under section 166 IPC, the same

provides for a public servant disobeying law with intent

to cause injury to any person, punishable with a term

of imprisonment which may extend to one year or with

fine or with both. Before the said offence could be said

to have been committed, it must prima facie be shown

that the public servant knowingly disobeyed any

direction of law as to the way in which he was to

conduct himself as a public servant, thereby intending

to cause or having the knowledge that it would be likely

to cause by such disobedience, injury to any person. In

the present case, there is no disobedience alleged by

the petitioner of any direction of law as the petitioner

has ultimately released the GPF amount of the

respondent no.1 on 1.7.2004 much before the filing of

the complaint case itself. It is only a delay of three

months between the period on which the respondent

no.1 became eligible to receive the amount and the

date on which it was actually transferred to his account,

due to which the case has been instituted. The rule of

law that the law shall not concern itself with trifles,
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which is enshrined in the maxim de minimis non

curat lex comes to play in such a case. No person

ought to be prosecuted for an offence on trifling issues

where from the facts of the case itself it is apparent

that the issue ought not to be placed before a court of

law for adjudication. It would be appropriate to refer to

section 95 of the Indian Penal Code where no act is an

offence on account of the fact that it does slight harm

that no person of ordinary sense and temper would

complain of such harm. The respondent no.1 has not

disclosed or demonstrated how the delay of three

months affected him in such a manner causing such

injury that the same required redressal by a court of

law.

Under the aforementioned circumstances, the petition is

allowed and the impugned order dated 16.12.2004 and

further proceedings in Complaint Case No.1644/2004

pending in the Court of the Chief Judicial Magistrate

Damoh is quashed insofar as it relates to the petitioner

herein. The record of the trial court be sent back.

(Atul Sreedharan)
Judge
ss

Digitally signed by SHYAMLEE
SINGH SOLANKI
Date: 2018.02.14 12:58:17 +05’30’

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