IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.38952 of 2013
Arising Out of PS.Case No. -664 Year- 2012 Thana -BHOJPUR COMPLAINT CASE District-
BHOJPUR
1. Jairam Yadav S/O Late Hitnarain Yadav Resident Of Village- Bhadwar, P.S.-
Chandi, District- Bhojpur
…. …. Petitioner/s
Versus
1. The State Of Bihar
2. Bhuneshwar Prasad Singh S/O Late Ram Badan Singh Resident Of Village-
Sakaldih, P.S.- Koilwar, District- Bhojpur
…. …. Opposite Party/s
Appearance :
For the Petitioner/s : Mr. Rajendra Nath Sinha, Adv.
For the State : Mr. (Dr.) Mayanand Jha, APP
For Opposite Party No.2 : Mr. Dronacharya, Adv.
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 07-04-2017
Heard learned counsel for the petitioner, learned
counsel for the State and learned counsel for the opposite party no.2.
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 6th May, 2013 passed by the learned Judicial
Magistrate 1st Class, Ara in Complaint Case No. 664(C) of 2012/
3035 of 2013 whereby the petitioner and 5-6 others have been
summoned to face trial for the offences punishable under Sections
406, 420 and 120-B/34 of the Indian Penal Code (for short „IPC‟).
3. In sum and substance, the case of the complainant is that
he requested brother-in-law‟s cousin Ramji Singh to arrange a buyer
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as he intended to sell about 69 decimals of land situated in Village
Sakaddi in the district of Bhojpur, Ara. Subsequently Ramji Singh
informed him that one Jairam Yadav (petitioner) is willing to
purchase the land whereafter he came to the village and went along
with the son of Ramji Singh to the Registry Office where the
petitioner and others were present from before. He executed the sale
deed in their presence in favour of Jairam Yadav. The allegation is
that it was agreed that a total sum of Rs.7,50,000/- would be paid to
him as consideration for the land but the said amount was never paid
to him.
4. Learned counsel for the petitioner submitted that the
entire allegation made in the complaint is concocted and fabricated in
order to black-mail the petitioner and realize some more money from
him by adopting pressure tactics. The complainant did not deny
execution of the sale deed rather he has admitted that he put his
signature, thumb impression, photographs etc. on the sale deed but
the same was done on the promise made by his brother-in-law‟s
cousin Ramji Singh that the entire payment of consideration would be
made to him after execution of the sale deed. He submitted that the
entire negotiation in the matter was done by Ramji Singh at the
behest of the complainant who had received full and final payment
even before the execution of sale deed and the complainant put his
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signature, thumb impression, finger print etc. on the sale deed after
being satisfied by the receipt of the payment of consideration. He
submitted that after execution of the sale deed the land has already
been mutated in the name of the petitioner.
5. On the other hand, learned counsel for the opposite party
no.2 submitted that the complainant has supported his case in his
statement made on oath and the witnesses examined in course of
inquiry have also supported the case of the complainant that no
payment of consideration was made to the petitioner for the sale of
the property. He contended that the allegations made in the complaint
do attract the ingredients of the offences punishable under Sections
420 and 406 of the IPC and thus the order impugned does not suffer
from any illegality.
6. I have heard learned counsel for the parties and perused
the record.
7. Section 406 of the IPC prescribes punishment for the
offence of criminal breach of trust, which has been defined under
Section 405 of the IPC.
8. Section 405 of the IPC 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
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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”.
9. A careful reading of Section 405 IPC 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.
10. 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 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.
11. Section 420 IPC deals with cheating. The offence of
cheating is defined under Section 415 of the IPC, which reads as
under:-
“415. Cheating —
Whoever, by deceiving any person, fraudulently or
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dishonestly induces the 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”.”
12. 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.
13. So far as the present case is concerned, the complainant
has not alleged that the petitioner or any one else dishonestly induced
him to part with the property rather the admitted case of the
complainant is that he requested Ramji Singh to arrange some buyer
for his land. Hence, one of the most essential ingredients to attract the
offence of cheating which is punishable under Section 420 of the IPC
is completely missing in the present case.
14. As seen above, dishonest intention and misappropriation
are the two essential ingredients of offence of criminal breach of
trust. In this regard it is to be noted that the Registration Act was
enacted in 1908. The object and the purpose of the said Act interalia
is to provide a method of public registration of document so as to give
information to the people regarding legal rights and obligations
arising or affecting a particular property. The very object of
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registering the document is to make public aware that document has
been executed to prevent fraud and forgery and to secure a reliable
and complete amount of transactions affecting the title to the
property. It is well settled that where a transfer is effected by way of
sale with condition that title will pass on payment of consideration
and such intention is clear from the recital in the deed, then such
instrument of sale can be cancelled by a deed of cancellation on the
ground of non-payment of consideration. Under such circumstance,
the title remains with the transferor. However, the complainant has
not made any averment that from the recitals of the deed it would
appear that payment of consideration was a precondition for transfer
of title. In absence of such allegation, both the aforesaid ingredients
of breach of trust are clearly wanting in the present case.
15. Once the title to the property is transferred and vested in
the transferee by the sale of property, in other words, a complete and
absolute sale can be cancelled at the instance of the transferor only by
taking recourse to the civil court by obtaining a decree of cancellation
on the ground interalia of fraud or any other valid reasons.
16. In the considered opinion of this Court, a dispute which
is purely of civil nature has been given a colour of criminal act with
the sole objective to take vengeance. If the payment of consideration
has not been made the complainant ought to have taken recourse to
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the civil court for a decree of cancellation instead of filing of criminal
case, which apparently seems to be an abuse of the process of the
Court.
17. In that view of the matter, the impugned order dated 6th
May, 2013 passed by the learned Judicial Magistrate 1st Class, Ara in
Complaint Case No. 664(C) of 2012/ 3035 of 2013 is quashed.
Further, for the reasons discussed above, the Complaint Case No.
664(C) of 2012/ 3035 of 2013 and all the proceedings emanating
from it are also quashed.
18. The application stands allowed.
(Ashwani Kumar Singh, J)
Pradeep/-
AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 11-04-2017
Transmission 11-04-2017
Date
