IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.2707 of 2014
Arising out of P.S. Case No.1137 Year 2012 Thana SARAN COMPLAINT CASE District SARAN

1. Prasoon Daut Jain S/o Late Pushpa Dutta Jain Resident of Mohalla Daulatganj,
P.S. Bhagwan Bazar, District Saran at Chapra

2. Smt. Asha Jain W/o Prasoon Daut Jain Resident of Mohalla Daulatganj, P.S.
Bhagwan Bazar, District Saran at Chapra
…. …. Petitioners
Versus

1. The State of Bihar

2. Shyam Sundar Prasad S/o Late Dewarika Prasad Resident of Mohalla East
Dahiyawan, P.S. Chapra Town, District Saran at Chapra
…. …. Opposite Parties

Appearance :

For the Petitioners : Mr. Radha Mohan Singh, Advocate
Mr. D. N. Singh, Advocate
For the State : Mr. Ajay Kumar No.I, APP
For O.P. No.2 : Mr. Ram Suresh Roy, Sr. Advocate
Mr. Rajesh Kr. Singh, Advocate
Mr. Anant Kr. Bhaskar, Advocate
Mr. Sanjay Kumar Jha, Advocate

CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR
ORAL JUDGMENT
Date: 17-07-2017

This application is filed for quashing order dated

09.08.2012, passed by learned Judicial Magistrate, 1st Class, Saran at

Chapra in Trial No.4018 of 2012, arising out of Complaint Case

No.1137 of 2012 whereby he has taken cognizance of the offence

under Section 406 of IPC.

2. The complainant, namely, Shyam Sundar Prasad filed

this complaint case against the petitioners and other accused alleging

therein that there was an agreement between complainant and one late

Sadhu Tiwary, Manager of the petitioner Prasoon Daut Jain in the

year 1995 for sale of a particular piece of land and in total he had
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advanced Rs.2,00,000/- and for another plot given Rs.6,00,000/- to

Sadhu Tiwary. Thereafter he requested Vijay Kumar Tiwary, son of

Sadhu Tiwary to get the sale deed executed with respect to those lands

but on 26.03.2012 and on 30.03.2012, the petitioners executed sale

deed in favour of accused no.4, Rajan Hrishikesh Chandra.

3. Learned counsel for the petitioners submits that there

was no any agreement for sale with the petitioners who have got the

right and title over the land concerned. It is an admitted position that

these petitioners had not given any power of attorney to Sadhu Tiwary

and they have no knowledge about taking of any money by Sadhu

Tiwary, moreover he had no authority to enter into an agreement for

sale with respect to their land that too is not a registered agreement.

Taking the entire allegation even as true, there is no entrustment of

any money with the petitioners, so no case under Section 406 IPC is

made out against these two petitioners.

4. Learned counsel appearing on behalf of complainant-

opposite party no.2 submits that in fact Sadhu Tiwary was the

Manager of these petitioners, who used to reside at different place and

on behalf of the petitioners, he entered into an agreement for sale of

two pieces of land and altogether had taken Rs.8,00,000/- in advance.

For one piece of land for which Rs.2,00,000/- was given in advance

and possession too was given to complainant. They were running their
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shop in this plot.

5. Having considered rival submissions on behalf of both

sides I find that the admitted case of the complainant is that there was

an agreement with late Sadhu Tiwary for purchasing land having right

and title vested in petitioners but thereafter the accused persons sold

the land to some other person, so in this backdrop of the fact as

narrated in the complaint petition whether a case of criminal breach of

trust is made out or not? So first of all let us look at the provision of

criminal breach of trust enumerated in Section 405 of the Indian Penal

Code. It is quoted herein below:

“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”.”

6. Two elements are necessary to constitute this offence,

first, entrustment of any property in any manner or with dominion

over the property secondly, the person with whom such entrustment is

made by the other, dishonestly misappropriates that property or

converts to his own use or dishonesty uses or disposes that property in

violation of any direction of law as prescribed therein according to
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which such trust is required to be discharged. In the backdrop of the

fact of this case, as stated in the complaint, this Court does not find

entrustment of any money with the petitioners. There is no legal

sanctity of any agreement for sale in between Sadhu Tiwary and the

complainant with respect to land of petitioners creating any legal

liability upon them for executing sale deed in favour of the

complainant, so even taking the entire allegation as true, as stated in

the complaint petition, no prima facie case under Section 406 IPC is

made out, therefore, the order taking cognizance dated 09.08.2012 and

subsequent criminal proceeding in Trial No.4018 of 2012, arising out

of Complaint Case No.1137 of 2012 is hereby set aside.

7. In the result, the petition stands allowed.

(Arun Kumar, J.)
S.Kumar/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 21.07.2017
Transmission 21.07.2017
Date