IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.28426 of 2014
Arising Out of PS.Case No. -24397 Year- 2014 Thana -PATNA COMPLAINT CASE District-
PATNA
Sairun Nisha wife of Md. Hafeez, resident of Mohalla – Dariyapur, Koeri Tola,
P.S. – Pirbahore, Distt. – Patna.
…. …. Petitioner
Versus
1. The State of Bihar
2. Md. Naseem Son of Late Abdul Shakoor, resident of Mohalla – Dariyapur, Bari
Path, P.S. – Pirbahore, Distt. – Patna.
…. …. Opposite Parties
Appearance :
For the Petitioner/s : Mr. Alok Kumar Sinha, Advocate
Mr. Binod Bihari Sinha, Advocate
Mr. Indrajeet Bhusan, Advocate
For the State : Md. Ansural Haque, APP
For the Opposite Party No.2: Mr. Sanjeet Kumar, Advocate
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 23-08-2017
Heard learned counsel for the petitioner, learned
Additional Public Prosecutor for the State and learned counsel for
complainant/opposite party no. 2.
2. This application under Section 482 of the Code of
Criminal Procedure (for short „Cr.P.C.‟) has been filed by the
petitioner for quashing the order dated 03.02.2014 passed in
Complaint Case No. 24397 (c) of 2014 by the learned Judicial
Magistrate, 1st Class, Patna whereby finding a prima facie case to
be made out under Sections 406 and 420 of the Indian Penal Code
(for short „IPC‟) against the petitioner, she has been summoned to
face trial.
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3. The complaint case, in short, is that on 08.09.2013, the
petitioner had executed an agreement for sale in favour of the
complainant and an earnest amount of Rs.5 lakh was received by
him on the day of execution of the agreement for sale and total
consideration amount was mutually agreed on Rs.33.50 lakh for the
piece of land and house measuring about 1.171 decimal constructed
over plot no.1244 situated in Mouza-Dariyapur, Kutubuddin Lane,
Koiri Tola, P.S.- Pirbahore, District- Patna.
4. As per terms and conditions, as laid down in the said
agreement for sale, the complainant had handed over four cheques,
each amounting to Rs.2.50 lakh. Thereafter, the complainant
requested the petitioner to execute absolute sale deed in his favour,
but the petitioner avoided to execute the same on one pretext or
other and, lastly, she flatly refused to execute the sale deed. Hence,
the present complaint was filed on 17.01.2014.
5. The complainant has been examined on solemn
affirmation. In course of inquiry conducted under Section 202 of
the Cr.P.C., three witnesses in support of the complainant were
examined. After holding inquiry, the learned Judicial Magistrate,
vide order dated 03.02.2014, summoned the petitioner to face trial
for the offences punishable under Sections 406 and 420 of the
Indian Penal Code. The said order is under challenge in the present
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application.
6. It is submitted by the learned counsel for the petitioner
that the petitioner has falsely been implicated in this case with an
ill motive and mala fide intention of the complainant to grab the
property of the petitioner illegally. He has submitted that the
contention of the complainant that he handed over four cheques
amounting to Rs.2.50 lakh each bearing cheque nos. 009966,
009967, 611480 and 611482 to this petitioner on 03.10.2013 is
completely false. He has submitted that no cheque was ever handed
over to the petitioner nor any amount was ever credited to her
account. He has further submitted that the falsity of the claim of the
complainant would be manifest from the fact that in the complaint
petition, the complainant has not given detail of the bank on which
the cheques were drawn. He has further submitted that the
complaint is silent about the fact that any amount was ever debited
from the account of the complainant and credited to the account of
the petitioner. He has submitted that it is true that agreement for
sale in favour of the complainant was executed on 08.09.2013 and
an earnest amount of Rs.5 lakh was received by the petitioner on
the day of execution of the agreement for sale, but the remaining
amount out of Rs.33.50 lakh was never paid to her. Thus, there was
no question of executing absolute sale deed in favour of the
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complainant.
7. Per contra, learned counsel for the complainant has
submitted that the evidence in respect of the payment of Rs.10 lakh
to the petitioner by way of four cheques would be laid before the
court in course of trial. He has submitted that the allegations made
in the complaint clearly attract the ingredients of the offences under
which cognizance has been taken. He has submitted that there is no
illegality in the order passed by the learned Judicial Magistrate
whereby the petitioner has been summoned to face trial.
8. Learned Additional Public Prosecutor for the State has
adopted the submissions made by the learned counsel for the
complainant.
9. I have heard learned counsel for the parties and
perused the record.
10. In my opinion, the first and foremost question, which
would arise in the present case is that even if the entire allegations
made in the FIR are taken at their face value and accepted in their
entirety, whether or not the ingredients of the offences punishable
under Sections 406 and 420 of the IPC would be attracted.
11. Section 406 of the IPC prescribes punishment for
criminal breach of trust. Section 405 of the IPC defines the offence
of criminal breach of trust as under :
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“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”.”
12. A careful reading of Section 405 of the 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.
13. It would, thus, appear that for the offences punishable
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under Section 406 of the IPC, the prosecution must prove :-
(i) that the accused was entrusted with property
or with dominion over it; and
(ii) that he (a) dishonestly misappropriated it, or
(b) dishonestly converted it to his own use, or (c)
used it, or (d) disposed of it in violation of any
direction of law prescribing the mode in which
such trust was discharged.
14. The gist of the offence prescribed under Section 406 of
the IPC is misappropriation done in a dishonest manner. The first
part of the said offence 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.
15. The offence punishable under Section 420 of the IPC
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
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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.”
16. 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 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”.”
17. To hold a person guilty of cheating as defined under
Section 415 of the IPC, it is necessary to show that the accused had
fraudulent or dishonest intention at the time of making the promise
with an intention to retain the property.
18. The question, whether failure to honour agreement to
sell without their being any allegation of fraudulent or dishonest
inducement having been made by the accused pursuant to which the
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complainant parted with money would constitute offence under
Sections 406 and 420 of the IPC, is no more res integra.
19. In Murari Lal Gupta vs. Gopi Nath Singh [(2005)
13 SCC 699] the Supreme Court observed as under:
“6. We have perused the pleadings of the parties,
the complaint and the orders of the learned
Magistrate and the Sessions Judge. Having taken
into consideration all the materials made
available on record by the parties and after
hearing the learned counsel for the parties, we are
satisfied that the criminal proceedings initiated
by the respondent against the petitioner are
wholly unwarranted. The complaint is an abuse
of the process of the court and the proceedings
are, therefore, liable to be quashed. Even if all the
averments made in the complaint are taken to be
correct, yet the case for prosecution under
Section 420 or Section 406 of the Penal Code is
not made out. The complaint does not make any
averment so as to infer any fraudulent or
dishonest inducement having been made by the
petitioner pursuant to which the respondent
parted with the money. It is not the case of the
respondent that the petitioner does not have the
property or that the petitioner was not competent
to enter into an agreement to sell or could not
have transferred title in the property to the
respondent. Merely because an agreement to sell
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was entered into which agreement the petitioner
failed to honour, it cannot be said that the
petitioner has cheated the respondent. No case for
prosecution under Section 420 or Section 406
IPC is made out even prima facie. The complaint
filed by the respondent and that too at Madhepura
against the petitioner, who is a resident of Delhi,
seems to be an attempt to pressurize the
petitioner for coming to terms with the
respondent.”
(emphasis mine)
20. In Nageshwar Prasad Singh alias Sinha Vs.
Narayan Singh [(1998) 5 SCC 694], a similar question fell for
consideration before the Supreme Court and a three Judge Bench
relying upon illustration (g) of section 415 of the IPC held that the
agreement for sale of land and the earnest money paid to the owner
as part of consideration and possession of land and the subsequent
unwillingness of the owner to complete the same gave rise to a
liability of civil nature and the criminal complaint was not
competent.
21. In Dalip Kaur Ors. Vs. Jagnar Singh [(2009) 14
SCC 696], the question for determination before the Supreme
Court was whether breach of contract of an agreement for sale
would constitute an offence under Sections 406 or section 420 of
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the IPC. After examining the facts of the case and the relevant
sections of the IPC, the Supreme Court held that an offence of
cheating would be constituted when the accused has fraudulent or
dishonest intention at the time of making of promise or
representation. A pure and simple breach of contract does not
constitute the offence of cheating. It further held that if the dispute
between the parties was essentially a civil dispute resulting from a
breach of contract on the part of the appellants by non-refunding
the amount of advance, the same would not constitute an offence of
cheating or criminal breach of trust.
22. Coming back to the facts of the present case, there is
no averment in the complaint to infer any fraudulent or dishonest
inducement having been made by the petitioner pursuant to which
the complainant parted with the money. It is also not the case of the
complainant that the petitioner does not have the property or that
the petitioner was not competent to enter into an agreement to sell
or could not have transferred title in the property to the
complainant. Merely because an agreement to sell was entered into,
which agreement allegedly the petitioner failed to honour, it cannot
be said that the petitioner has cheated the complainant.
23. Thus, in view of the ratio laid down by the Supreme
Court in Dalip Kaur Ors. vs. Jagnar Singh (Supra),
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Nageshwar Prasad Singh alias Sinha vs. Narayan Singh (Supra)
and Murari Lal Gupta vs. Gopi Nath Singh (Supra), I am of the
considered opinion that at best, it is a pure and simple case of
breach of contract, which would not attract the ingredients of the
offences under Sections 406 and 420 of the Indian IPC.
24. In view of the foregoing discussions, the very order of
cognizance is bad. Hence, summoning order dated 03.02.2014
passed by the learned Judicial Magistrate, 1st Class, Patna in
Complaint Case No. 24397 (c) of 2014 cannot be sustained.
Accordingly, the application is allowed. The impugned order dated
03.02.2014 passed in Complaint Case No. 24397 (c) of 2014 by the
learned Judicial Magistrate, 1st Class, Patna and the entire
subsequent proceedings arising therefrom are set aside.
(Ashwani Kumar Singh, J.)
Kanchan/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.08.2017
Transmission NA
Date