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Jairam Yadav vs State Of Bihar & Anr on 7 April, 2017

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
Patna High Court Cr.Misc. No.38952 of 2013 dt.07-04-2017

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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
Patna High Court Cr.Misc. No.38952 of 2013 dt.07-04-2017

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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
Patna High Court Cr.Misc. No.38952 of 2013 dt.07-04-2017

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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
Patna High Court Cr.Misc. No.38952 of 2013 dt.07-04-2017

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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
Patna High Court Cr.Misc. No.38952 of 2013 dt.07-04-2017

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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
Patna High Court Cr.Misc. No.38952 of 2013 dt.07-04-2017

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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

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