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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Miscellaneous Criminal Case No.157/2005
Dr.K.K.Tamrakar…………………………………………….Petitioner
Versus
Dr.Shri Vinay Singh Yadu and another……………Respondents
For the petitioner : Mr. Sanjay Ram Tamrakar, Advocate.
For Respondent : Mr Mukesh Shukla, Advocate.
no.1
For Respondent : Mr.Sharad Sharma, Government
no. 2 Advocate
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Present: HON’BLE MR. JUSTICE ATUL SREEDHARAN
******
ORDER
(8.2.2018)
The present petition has filed by the petitioner
herein for quashing the order dated 16.12.2004 passed
by the Court of the learned Judicial Magistrate First
Class, Damoh, in Complaint Case No.1644/2004
whereby, upon the complaint filed by the respondent
no.1, cognizance of offences under section 120-B read
with sections 166 and 406 of the IPC was taken against
the petitioner and the co-accused persons.
The case against the petitioner has arisen on the basis of a
complaint preferred by the respondent no.1 on
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12.7.2004 under section 200 Cr.P.C. to take cognizance
of offences under sections 166, 409, 406 read with
section 120-B IPC. The petitioner herein was the
prospective accused No.1 in the complaint case and the
prospective accused Nos. 2 was the then Accountant in
the Office of the Chief Medical and Health Officer and
the prospective accused No.3 was the then Clerk in the
Receiving Section of the office of the Chief Medical and
Health Officer, Damoh.
According to the complainant, he retired from the post of
District Family Welfare Officer (Surgical Specialist), in
October 2001. The complainant/respondent no.1
further states that the petitioner and the other co-
accused persons were responsible for the release of the
General Provident Fund (hereinafter referred to as “the
GPF”) of the respondent no.1. It is further alleged that
the accused persons were delaying the payment of the
GPF on the alleged grounds of “missing deductions”.
The complainant further states that on 17.3.2004, there was
an order of the Accountant General of Madhya Pradesh
(hereinafter referred to as “AGMP”) bearing
No.85/Damoh/2861, a certified copy of which was
marked to the complainant and was received by him on
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19.3.2004. As per this order, the petitioner was to
release in part, the GPF payment accruable to the
respondent amounting to Rs.3,16,321/-. This order also
mentions about the missing deductions. It is the case
of the complainant that the amount was not paid
despite the order.
On 29.3.2004, the complainant sends a notice to the AGMP
and the petitioner No.1 relating to the missing
deductions. The complainant contends that the said
notice was received by the office of the petitioner on
31.3.2004. In response to the said notice, the
complainant is stated to have received the copy of the
letter dated 5.5.2004 issued from the Office of the
AGMP, which was addressed to the petitioner in which
the petitioner was directed to release the GPF amount
of the respondent no.1. The complainant further alleges
that the contention of the petitioner that the order
dated 17.3.2004 having not been received by his office
was incorrect as the complainant had gone to the office
of the petitioner and upon enquiry, he was informed by
someone there that the order dated 17.3.2004 has
been received by the office of the petitioner. The
complainant is stated to have cross-checked this fact by
going to the post-office and receiving information from
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the postman that the order dated 17.3.2004, which was
sent by registered post from Gwalior from the Office of
the AGMP, was delivered to the office of the petitioner.
The complaint has been preferred only on account of a delay
in the payment of the GPF which was ultimately
deposited in the account of the respondent No.1 on
1.7.2004, which is undisputed and accepted by the
learned counsel for the respondent No.1. However, the
learned counsel for the respondent No.1 and the State
while opposing the petition have submitted that the
amount ought to have come into the account of
respondent No.1 on 1.4.2004. Therefore, according to
the learned counsel for the respondent No.1 and the
State, the offences for which the cognizance has been
taken by the learned Court below is on account of the
delay in the non-payment of the GPF by three months.
In order to substantiate this, the attention of this Court
has been drawn to the impugned order of the learned
Court below dated 16.12.2004, which is from pages 71
to 73 of the petition. The grounds for taking cognizance
is laid out on page 72 wherein the learned Court below
held:
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“आववेदक नवे प. पपी 05 प पपी 07, 8 , प. पपी 012, 13,
15,17, 18,19, और 20 तथथा 22 कवे जजो दस्तथाववेज पवेश
ककयवे गए अववं प. पपी 023,24, कवे दस्तथाववेज सवे आववेदक
/ पररवथाददी कजो आववेदकगणजो नवे ररटथायरममेंट कवे पशथात जजो
रथाशश उसवे समय पर पथाप्त हजोनथा थपी , समय पर न दवे तवे हहए
उसवे उक्त रथाशश सवे ववंशचित रखथा.”
Thus, it is absolutely clear that the only ground for having
taken cognizance of the offences under sections 120-B
read with sections 166 and 406 IPC was on account of
a three month delay in the release of the GPF in favour
of the respondent No.1.
The learned counsel for the petitioner has drawn the
attention of this court to the police report, which is a
part of the original Court file, which has been
summoned by this Court, in which the police report also
states that the GPF amount was deposited into the
account of the respondent No.1 on 1.7.2004. This
report is dated 4.10.2004.
The only question that arises for consideration before this
Court is whether the aforesaid delay in deposit of the
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GPF amount by the petitioner, would constitute offences
under sections 406 and 166 IPC. Section 406 IPC is the
punitive section providing punishment for an offence of
criminal breach of trust. The substantive section laying
down the ingredients of the offence is section 405 IPC.
As per section 405 IPC, the primary pre-requisite for an
offence of criminal breach of trust is entrustment of
property or dominion over a property. Secondly, there
must be a dishonest misappropriation or conversion of
that property by the person in whom such property is
entrusted or thirdly there must be dishonest use or
disposal of the property in violation of any direction of
law prescribing the mode in which such trust is to be
discharged or of any legal contract, expressed or
implied, which the accused has made pertaining to the
discharge of such trust, or wilfully suffers any other
persons so to do, would deem to have committed an
offence of criminal breach of trust. With regard to cases
involving provident funds, explanations 1 and 2 to
section 405 are also relevant. Explanation 1 provides
for a person who is an employer, who deducts the
employee’s contribution from the wages payable to the
employee, to be credited to a provident fund or a family
pension fund, would be deemed to have been entrusted
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with the amount of the contribution so deducted by him
and where such a person makes default in the payment
of such contribution to the fund in violation of the law,
he would be deemed to have dishonestly used the
amount of the said contribution. Explanation 1 is ex
facie not applicable in this case as the petitioner herein
is not the employer. The employer is the State of
Madhya Pradesh and the entity which is vested with the
task of deducting the contribution of the respondent
no.1 towards provident fund, is the Office of the AGMP.
The petitioner has no say with regard to such
deductions.
As regards Explanation No.2, once again a person who is an
employer deducts the employees’ contribution from the
wages payable to the employees, ostensibly to be
credited to the Employees’ State Insurance Fund held
and administered by the Employees’ State Insurance
Corporation, would be deemed to have been entrusted
with the amount of the contribution so deducted by him
and where such a person makes a default in payment
of such contribution to the said fund in violation of the
Act, he would be deemed to have used dishonestly the
amount of the said contribution in violation of a
direction of law. Illustration “E” to section 405 IPC
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offers guidance in the interpretation of this section. The
said illustration relates to a revenue officer being
entrusted with public money and where such money is
to be paid into a certain Treasury is dishonestly
misappropriated by such officer, he would be guilty of
committing criminal breach of trust.
In this case, the undisputed facts reveal that the applicant’s
role falls in between the Accountant General’s Office
and that of the respondent No.1. His role is that of a
post office. The order to release the GPF fund amount
was issued by the AG Office on 17.3.2004. Thereafter,
upon its receipt it was the duty of the petitioner to
ensure that he gives his clearance to the Treasury and
the Treasury would thereafter deposit the amount into
the account of the respondent No.1. Nowhere in the
complaint is it alleged that the petitioner had
misappropriated the GPF amount due to the respondent
No.1 and converted it to his own use in contravention
of a direction of law, thereby causing loss to the
respondent No.1 and neither is it alleged that the
petitioner in conspiracy with anyone else has diverted
the funds accruable to the respondent no.1 to anyone
else, thereby causing an unlawful loss to the
respondent no.1 and an attendant gain to a third party.
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As stated hereinabove earlier, the only allegation is with
regard to the delayed disbursal of the GPF amount by
three months. As there is no allegation of any
misappropriation by the petitioner herein and in the
absence of any allegation that the amount of the
respondent no.1 which lay vested with the petitioner
was disposed of in any manner contrary to the dictates
of law. The allegations do not prima facie fulfil the
ingredients of section 405 IPC and, therefore, an
offence under section 406 IPC cannot be held
sustainable.
In the course of the arguments, the learned counsel for the
respondent no.1 has referred to a decision of the
Hon’ble Supreme Court in Bhargavan Pillai Vs. State
of Kerala (2004) 13 SCC 217. The learned counsel for
the respondent no.1 has drawn the attention of this
court to paragraph no.13 of the judgment wherein the
Supreme Court has held that for an offence of criminal
breach of trust all that needs to be shown by the
prosecution is entrustment. Once that is proved, it is
for the accused to establis how the property was dealt
with. This case primarily established a ratio on the
requirement of previous sanction under section 197
Cr.P.C. for an offence committed by a person in his
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capacity as a public servant. The observation relating to
criminal breach of trust is in the nature of an obiter
dicta which also, is binding upon this court. However,
the admitted facts of this case go to clearly reveal that
this was not a case of misappropriation but only a delay
that was caused in the disbursement of the GPF
amount. Under the circumstances, in the fact-premises
of the present case, the said judgment of the Supreme
Court in N.Bharvan Pillai would not be applicable.
The second judgment referred to by the learned counsel for
the respondent no.1 is Ajay Mehra Vs. Durgesh
Babu (2002) 9 SCC 709. In that case, the Hon’ble
Supreme Court held that the standard of evidence and
its appreciation at the stage of taking cognizance is
prima facie. At that stage, other materials ought not to
be considered and the trial court only needs to see
whether the allegations in the complaint prima facie
make out an offence. For the reasons stated
hereinabove, it is apparent that even if the complaint is
taken in its entirety, it is clear that the offence under
section 406 IPC is not made out as the amount which
was due to the respondent no.1 has undisputedly been
received by him. Thus, the prima facie evidence itself
for constituting an offence under section 406 IPC, was
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missing and, therefore, cognizance of the offence under
section 406 IPC ought not to have been taken in the
first place.
As regards the offence under section 166 IPC, the same
provides for a public servant disobeying law with intent
to cause injury to any person, punishable with a term
of imprisonment which may extend to one year or with
fine or with both. Before the said offence could be said
to have been committed, it must prima facie be shown
that the public servant knowingly disobeyed any
direction of law as to the way in which he was to
conduct himself as a public servant, thereby intending
to cause or having the knowledge that it would be likely
to cause by such disobedience, injury to any person. In
the present case, there is no disobedience alleged by
the petitioner of any direction of law as the petitioner
has ultimately released the GPF amount of the
respondent no.1 on 1.7.2004 much before the filing of
the complaint case itself. It is only a delay of three
months between the period on which the respondent
no.1 became eligible to receive the amount and the
date on which it was actually transferred to his account,
due to which the case has been instituted. The rule of
law that the law shall not concern itself with trifles,
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which is enshrined in the maxim de minimis non
curat lex comes to play in such a case. No person
ought to be prosecuted for an offence on trifling issues
where from the facts of the case itself it is apparent
that the issue ought not to be placed before a court of
law for adjudication. It would be appropriate to refer to
section 95 of the Indian Penal Code where no act is an
offence on account of the fact that it does slight harm
that no person of ordinary sense and temper would
complain of such harm. The respondent no.1 has not
disclosed or demonstrated how the delay of three
months affected him in such a manner causing such
injury that the same required redressal by a court of
law.
Under the aforementioned circumstances, the petition is
allowed and the impugned order dated 16.12.2004 and
further proceedings in Complaint Case No.1644/2004
pending in the Court of the Chief Judicial Magistrate
Damoh is quashed insofar as it relates to the petitioner
herein. The record of the trial court be sent back.
(Atul Sreedharan)
Judge
ss
Digitally signed by SHYAMLEE
SINGH SOLANKI
Date: 2018.02.14 12:58:17 +05’30’