Manju Devi vs State Of Bihar & Anr on 8 April, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.42515 of 2013
Arising Out of PS.Case No. -15 Year- 2009 Thana -PHENHARA District-
EASTCHAMPARAN(MOTIHARI)

Manju Devi W/O Bhola Yadav, resident of Village- Jamunia, P.S- Pipara, District-
East Champaran.

…. …. Petitioner
Versus

1. The State Of Bihar

2. Umakant Tiwari S/O Raghunath Tiwari, resident of Village- Kalupakar, P.S-
Fanhara, District- East Champaran.

…. …. Opposite Parties.

Appearance :

For the Petitioner/s : Mr. Sharda Nand Mishra, Advocate
Mr. Deepak Kumar, Advocate
For the State : Dr. Mayanand Jha, APP

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 08-04-2017

Heard Mr. Sharda Nand Mishra, learned advocate for

the petitioner and Dr. Mayanand Jha, 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 filed for

quashing the order dated 13.06.2011 passed by the learned Sub-

divisional Judicial Magistrate, Sikrahana at Motihari in Phenhara

P.S. Case No. 15 of 2009 whereby the petitioner and two others
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have been summoned to face trial for the offences punishable under

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

3. Complaint petition vide Complaint Case No.

140 of 2009 was filed by one Umakant Tiwari in the court of Sub-

divisional Judicial Magistrate, Sikrahana which was referred to the

police under Section 156(3) of the Cr.P.C. pursuant to which

Phenhara P.S. Case No. 15 of 2009 was registered under Sections

406, 409, 420, 504 and 506/34 of the IPC against the petitioner

Manju Devi and two others, namely, Kailashi Devi and Kameshwar

Hajara and investigation was taken up.

4. Allegation in the FIR is that the daughter of the

informant, namely, Kumari Gunja, who was differently abled and

was having qualification of B.A.(Hons.) in the subject of

Psychology, had applied for appointment on the post of Shiksha

Mitra. The accused persons demanded Rs.1,50,000/- for her

appointment. The informant agreed to negotiate with them and

persuaded them to appoint her daughter on the payment of

Rs.1,20,000/-. At the request of the informant, they visited his

house on 09.11.2008 and received Rs.1,20,000/- from him but

neither the informant‟s daughter was appointed nor the amount
Patna High Court Cr.Misc. No.42515 of 2013 dt.08-04-2017

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taken by them was returned to him.

5. The police investigated the case and found no

incriminating material against the accused persons. Accordingly,

the Investigating Officer submitted his report under Section 173(2)

of the Cr.P.C. vide Final Report No. 18 of 2010 dated 24.04.2010

holding the accusation to be false. The Investigating Officer also

recommended for initiation of a prosecution against the informant

READ  State vs Mahender Sahni on 29 May, 2017

under Sections 182 and 211 of the IPC for launching a malicious

prosecution.

6. However, on perusal of the police report and the

other materials collected in course of investigation, the learned

Magistrate differed with the police report and took cognizance of

the offences under Sections 406 and 420 of the IPC against the

petitioner and two others and summoned them to face trial.

7. Challenging the aforesaid order dated

13.06.2011, learned counsel for the petitioner submitted that the

essential ingredients of the offence punishable under Sections 406

and 420 of the IPC are not attracted in the present case. He

submitted that at the relevant time, the petitioner was a Ward

Councillor whereas two others co-accused, namely, Kailashi Devi
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and Kameshwar Hajara were Mukhiya and Panchayat Sewak

respectively. He submitted that the post of Shiksha Mitra was not in

existence on or after 01.07.2006 and, hence, there was no scope for

the informant‟s daughter to have applied on the post of Shiksha

Mitra. He submitted that finding the entire allegation to be false and

baseless, the police had submitted final report holding the

accusation to be false but without assigning any reason

mechanically the learned Sub-divisional Judicial Magistrate

differed with the police report and wrongly summoned the

petitioner to face the prosecution for the offences punishable under

Sections 406 and 420 of the IPC.

8. On the other hand, learned Additional Public

Prosecutor for the State submitted that to hold investigation is the

statutory duty of the police, but once the police report is submitted,

it is for the Magistrate to appreciate the materials collected during

investigation and pass order in accordance with law. He submitted

that since the learned Sub-divisional Judicial Magistrate has

differed with the police report, the guilt or innocence of the

petitioner can be seen only at the stage of trial. He submitted that

there is no illegality in the order passed by the learned Magistrate.
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9. I have heard learned counsel for the parties and

carefully perused the record.

10. From the order impugned, it would be evident

that the learned Judicial Magistrate has found a prima facie case to

be made out under Sections 406 and 420 of the IPC.

11. Section 406 of the IPC prescribes punishment

for the offence of criminal breach of trust whereas Section 420 of

the IPC prescribes punishment for the offence of cheating.

12. The gist of the offence under Section 406 IPC is

misappropriation done in a dishonest manner. There are two

distinct parts of the said offence. The first involves the fact of

entrustment, wherein an obligation arises in relation to the property

READ  Govind Prasad Tripathi vs The State Of M.P. on 22 May, 2017

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.

13. One of the essential ingredients of the offence of

cheating is dishonest inducement to the person to deliver any

property or allow any person to retain any property.

14. In the background of the facts stated in the FIR,

I am of the view that it is neither a case of misappropriation done in
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a dishonest manner contrary to the terms of the obligation which it

created nor a case of dishonest inducement to deliver any property

or allow any person to retain any property rather it is case where

the informant had made an offer to pay illegal gratification for

procurement of job which allegedly was accepted by the accused

persons pursuant to which certain payment is alleged to have been

made.

15. In the opinion of this Court, such a kind of

agreement or contract was void and invalid from the moment it was

created and neither of the parties was bound by the terms. The term

of the agreement was not only illegal but also against public policy

to which the informant himself was a party. It is well settled that if

a contract is void because it is against the law and does not adhere

to valid contract elements, it cannot be enforced.

16. Section 23 of the Indian Contract Act

enumerates of three issues, i.e. consideration for the agreement, the

object of the agreement and the agreement per se. Section 23

creates a limitation on the freedom of a person in relation to

entering into contracts and subjects the rights of such person to the

overriding considerations of public policy and others enunciated
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under it.

17. Section 24 of the Indian Contract Act prescribes

that if considerations and objects of agreement are forbidden by

law, the same would be void.

18. In Chelloor Mankkkal Narayan, Ittirvi

Nambudiri vs. State of Travancore-Cochin [AIR 1953 SC 478],

the Hon‟be Supreme Court in para 21 held as under :

“21. The other point that requires
consideration is, whether on the prosecution
evidence as it stands, the accused can be held guilty
of criminal breach of trust ? As laid down in S. 385,
Cochin Penal Code, (corresponding to S. 405.
Indian Penal Code) to constitute an offence of
criminal breach of trust it is essential that the
prosecution must prove first of all that the accused
was entrusted with some property or with any
dominion or power over it. It has to be established
further that in respect of the property so entrusted,
there was dishonest misappropriation or dishonest
conversion or dishonest use or disposal in violation
of a direction of law or legal contract, by the
accused himself or by someone else which he
willingly suffered to do.

READ  Sohan vs The State Of Madhya Pradesh on 27 April, 2017

It follows almost axiomatically from this
definition that the ownership or beneficial interest
in the property in respect of which criminal breach
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of trust is alleged to have been committed, must be
in some person other than the accused and the latter
must hold it on account of some person or in some
way for his benefit. In the case before us, it is not
disputed that if the sum of Rs. 23,100 was paid by
P. W: 1 to the appellant by way of illegal
gratification to induce the latter to make an
allotment of cloth in his favour, there could be no
question of entrustment in such payment. The payee
would then receive the money on his own behalf
and not on behalf of or in trust for anybody else.
The criminality of an act of this character would
consist in illegal receipt of the money and the
question of subsequent misappropriation or
conversion of the same would not arise at all.”

19. It is trite law that one who knowingly enters into

the contract with improper object cannot enforce his rights in

relation to such contract. If the allegations made in the complaint

are to be accepted, in the opinion of this Court, the complainant

himself is liable to prosecution under the Prevention of Corruption

Act for abetting a public servant to receive illegal gratification.

20. In Vijay Sharma and Anr. vs. State of Bihar

[2011(1) PLJR 780], this Court had held that agreement to secure

appointment by unfair means itself being unlawful and prohibited
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under the law is void ab initio. It further held that there cannot be

any entrustment of a property for use and disposal contrary to law.

It further held that concept of „cheating‟ shall have no application

where the act which is stated to constitute „cheating‟ was itself an

offence.

21. Considering the totality of the facts and

circumstances of the case, this Court is of the opinion that allowing

the prosecution to continue would be an abuse of the process of the

court. Accordingly, impugned order dated 13.06.2011 passed by the

learned Sub-Divisional Judicial Magistrate, Sikrahana at Motihari

and all the proceedings arising out of Phenhara P.S. Case No. 15 of

2009 are hereby quashed.

22. The application stands allowed.

(Ashwani Kumar Singh, J.)

Kanchan/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 11.04.2017
Transmission 11.04.2017
Date

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