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Ashwani Kumar Singh vs State Of Bihar & Anr on 12 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.41641 of 2017
Arising Out of PS.Case No. -708 Year- 2014 Thana -PHULWARI District- PATNA

1. Ashwani Kumar Singh Son of late Hari Dayal Singh Resident of 2nd Floor,
Krishna Building, S.P. Verma Road, P.S. Gandhi Maidan, Distt.- Patna.

…. …. Petitioner/s
Versus

1. The State of Bihar.

2. Rabindra Nath Singh Son of late Keshav Prasad Singh Resident of Quarter No.
301, C.D., New Colony, P.O. P.S.- Khagaul, Distt- Patna.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Deepak Kumar, Adv.

For the Opposite Party/s : Mr. Kumar Virendra Narayan, APP
For the Opposite Party No.2 : Mr. Anis Akhtar, Adv.

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 12-04-2018

Heard learned counsel for the petitioner, learned counsel

for the State and learned counsel for the informant.

2. This application under Section 482 of the Code of

Criminal Procedure has been filed by the petitioner for quashing the

order dated 30.07.2015 passed by the learned Judicial Magistrate 1 st

Class, Patna in connection with Phulwarisharif P.S.Case No. 708 of

2014 by which he has taken cognizance of the offences punishable

under Sections 406 and 420 of the Indian Penal Code (for short „IPC‟)

and summoned the petitioner to face trial.

3. The prosecution story in brief, according to the
Patna High Court Cr.M isc. No.41641 of 2017 dt.12-04-2018

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informant Rabindra Nath Singh, is that the petitioner being the

Managing Director of Ashwani Enterprises Pvt. Ltd. executed a

registered sale deed of a plot measuring 2800 sq.ft. in his favour on

15.03.1997 and gave possession of the same on 25.04.1999 and since

then he is coming in its possession. After retirement, when he wanted

to construct house on the aforesaid plot, the petitioner started creating

obstruction. He wanted to take back the plot from the informant for

extension of his school premises. When he refused to oblige the

petitioner, he was threatened and under a conspiracy to grab the plot

he blocked access to the said plot from all sides causing obstruction in

construction of his house. The informant further alleged that in the

sale deed and map 40 feet and 20 feet road access way adjacent to

plot in southern and western side respectively have been shown but

due to encroachment made by the petitioner the plot is not accessible.

It is also alleged that in order to exert pressure he got opened

windows of the school towards his plot and the plot is being used for

dumping garbage of the school.

4. On these allegations, Phulwarisharif P.S.Case No. 708 of

2014 was registered and investigation was taken up. On completion

of investigation, the police submitted charge-sheet under Sections 406

and 420 of the IPC. Taking into consideration the materials available

on record, learned Judicial Magistrate 1st Class, Patna vide order
Patna High Court Cr.M isc. No.41641 of 2017 dt.12-04-2018

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dated 30.07.2015 took cognizance of the offences under Sections 406

and 420 of the IPC and summoned the petitioner.

5. Assailing the aforesaid order dated 30.07.2015, learned

counsel for the petitioner submitted that from perusal of the FIR it

would be evident that the entire dispute is regarding right to easement

over the plot and except this, all the allegations are vague and

superfluous. He submitted that in the FIR itself the informant has

admitted that as promised the petitioner had executed the sale deed in

favour of the informant and had handed over possession of the plot to

him way back in the year 1999 itself. There is no allegation of any

criminal breach of trust or cheating against the petitioner and in that

view of the matter the entire investigation made by the police, which

led to submission of charge-sheet under Sections 406 and 420 of the

IPC was misdirected. According to him, even the learned Magistrate

failed to apply his judicial mind and mechanically took cognizance of

the offences.

6. Per contra, learned counsel appearing for the State

submitted that the allegations made in the FIR do attract the

ingredients of the offences punishable under Sections 406 and 420 of

the IPC and the same were found true in course of investigation and,

thus, no illegality has been committed by the learned Magistrate in

taking cognizance of the offences and summoning the petitioner.
Patna High Court Cr.M isc. No.41641 of 2017 dt.12-04-2018

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7. Learned counsel appearing for the informant submitted

that right from the beginning the intention of the petitioner was

dishonest. He submitted that the petitioner has been made accused in

several other cases of identical nature. The petitioner is a land mafia

and is in the habit of cheating innocent persons. While executing the

sale deed the petitioner had stated that the plot is accessible from two

sides and believing upon his words the informant had invested his

hard earned money, but subsequently when he wanted to construct the

house, he blocked the plot from all sides making it impossible for the

informant to erect any construction.

8. I have heard learned counsel for the parties and perused

the record.

9. Cognizance has been taken of the offences punishable

under Sections 406 and 420 of the IPC. Section 406 IPC prescribes

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

IPC defines criminal breach of trust, which reads 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 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”.”

Patna High Court Cr.M isc. No.41641 of 2017 dt.12-04-2018

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10. The following ingredients would be essential to attract

the operation of Section 405 of the IPC :-

(a) The accused must be entrusted with property or
dominion over property;

(b) The person so entrusted must;

(i) dishonestly misappropriate or convert to his own
use that property,

(ii) dishonestly used or disposed of that property or
willfully suffered any person to do so in violation of
any direction of law prescribing the mode in which
such trust was discharged.

11. Thus, entrustment of property is an essential requirement

before any offence under Section 405 of the IPC takes place. In order

to constitute a legal entrustment, the complainant must be the owner

of the property, there must be transfer of possession and such transfer

must be actual transfer. Such transfer should be made to somebody

who has no right other than that of a custodian.

12. Here in the present case, the case of the informant is that

the petitioner had sold the plot to him and in the sale deed and map

approach road to the plot in southern and western side was shown, but

the land of road has been unauthorizedly occupied by the petitioner in

the manner that the plot has become inaccessible to the informant.

Hence, what is important to be seen is that there is no legal

entrustment of the property by the informant to the petitioner but it is
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a case of illegal and unauthorized occupation of road of land.

13. Thus, in absence of any legal entrustment ingredients of

the offence punishable under Section 406 of the IPC are not attracted.

14. The only other penal provision under which cognizance

has been taken is Section 420 of the IPC which prescribes punishment

for the offence of cheating. It 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.”

15. In the case of V.Y. Josh Vs. State of Gujarat [(2009) 3

SCC 78], the Supreme Court held that the offence of cheating cannot

be said to have been made out unless the following ingredients are

fulfilled :-

“(i) deception of a person either by making a false or
misleading representation or by other action or
omission;

(ii) fraudulently or dishonestly inducing any person to
deliver any property; or

(iii) To consent that any person shall retain any
property and finally intentionally inducing that person
to do or omit to do anything which he would not do
or omit.”

Patna High Court Cr.M isc. No.41641 of 2017 dt.12-04-2018

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16. For the purpose of constituting an offence of cheating,

the complainant is required to show that the accused had fraudulent or

dishonest intention at the time of making promise or representation.

Even in a case where allegations are made in regard to failure on the

part of the accused to keep his promise, in absence of a culpable

intention at the time of making initial promise being absent, no

offence under Section 420 of the IPC can be said to have been made

out.

17. Here in the present case, there is nothing to show that the

petitioner had dishonest intention at the time of making promise or

representation. It is the case of the informant that as per negotiation

the petitioner executed the sale deed and handed over possession of

the plot. Any dispute after coming into possession of the property

relating to illegal occupation of approach road would not constitute

an offence of cheating.

18. In that view of the matter, I am of the considered opinion

that neither the offence of criminal breach of trust nor the offence of

cheating is made out in the present case. In absence of the ingredients

of any criminal offence, the impugned order dated 30.07.2015 passed

by the learned Judicial Magistrate 1st Class, Patna in connection with

Phulwarisharif P.S.Case No. 708 of 2014 whereby he took

cognizance of the offences punishable under Sections 406 and 420 of
Patna High Court Cr.M isc. No.41641 of 2017 dt.12-04-2018

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the IPC and summoned the petitioner to face trial cannot be sustained.

Accordingly, the same is set aside.

19. The application stands allowed.

(Ashwani Kumar Singh, J)

Pradeep/-

AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 16-04-2018
Transmission 16-04-2018
Date

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