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Rajiv Sharma And Another vs State Of U.P. And Another on 17 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 34

Case :- APPLICATION U/S 482 No. – 3509 of 2006

Applicant :- Rajiv Sharma And Another

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Shashi Kant Gupta,Pradeep Kumar Tripathi

Counsel for Opposite Party :- Government Advocate,T.K.Mishra

Hon’ble Sudhir Agarwal,J.

1. Heard Sri Pradeep Kumar Tripathi, learned counsel for applicants and learned A.G.A. for State-respondent.

2. This application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) has been filed by applicants seeking quashing of entire proceedings of Complaint Case No.3713 of 2005 pending in Court of Additional Chief Judicial Magistrate/A.C.J. (C.D.), Court no.3, Ghaziabad.

3. Copy of complaint is Annexure-VI to application and contents thereof from para 1 to 10 reads as under:

^^1- ;g fd izkFkhZ@vfHk;ksxh ds }kjk vfHk;qDrx.k dh mDr dEiuh eSllZ fMokbZu ¼bf.M;k½ bUnzkLV~Dpj izk0 fy0 ds }kjk foKfIr lwpuk ds vk/kkj ij fnukad 5122004 dks ,d feuh ,e0vkbZ0th0 QySV la[;k9 fLFkr ch Cykd fMokbZu O;w ikdZ vikVZesUV vHk; [k.M r`rh; bUnzkiqje xkft;kckn esa cqfdax /kujkf’k vadu 50]000@ :i;s dk Hkqxrku dj cqfdax djk;h Fkh ftldh jlhn la[;k 093 fnukafdr 5122004 mDr dEiuh ds vf/kd`r gLrk{kjh fnus’k dqekj ds }kjk lEifRr Lfky ij fLFkr {ksh; dk;kZy; ,1 fMokbZu ikdZ O;w vikVZesUV vHk; [k.M r`rh; bUnzkiqje xkft;kckn ls tkjh dh x;h FkhA

2- ;g dh izkFkhZ@vfHk;ksxh ds }kjk mDR cqfdax ls igys fnukad 4122004 dks vfHk;qDrx.k jktho ‘kekZ o fnus’k dqekj ls mDr {ksh; dk;kZy; ij gh lEidZ dj ds tc mDr lEifRr o Hkou vkfn ds lEcU/k esa iwNrkN dh x;h Fkh rks vfHk;qDrx.k ds }kjk izkFkhZ dh iRuh Jherh lhek xzksoj o Jh jktsUnz dqekj ds lkeus gh crk;k x;k Fkk fd mDr lEifRr gj rjg ls fookn jfgr gS rFkk vxys 4 ekg esa gh QySV dh jftLV~h vkids uke ij dj nh tk;sxhA vkSj mDr lEifRr dks [kjhnus ds fy;s gkse yksu vkfn Hkh izkFkhZ dks fnyok nsus dh ckr djrh Fkh vkSj ;s Hkh crk;k Fkk fd ;fn vfHk;ksxh pkgs rks dgha ls Hkh gkse yksu ys ldrk gsA

3- ;g fd vfHk;qDrx.k ds crk;s vuqlkj djhc 15 fnu ds ckn fnukad 21-12-2004 dks izkFkhZ@vfHk;ksxh iqu% vfHk;qDrx.kksa ls feyk rks vfHk;qDrx.k us izkFkhZ@vfHk;ksxh dks ,xzhesUV Vw lSy MhM@bdjkjukek fnukafdr 3-12-2004 dh QksVks dkih nsdj dgk fd mlds vk/kkj ij vki yksu ys ldrs gSaA

4- ;g fd mDRk ,xzhesUV Vw lsy MhM@bdjkjukek ds vk/kkj ij dbZ cSadksa ls lEidZ djus ij irk pyk fd mDr MhM ds vk/kkj ij yksu ugha fey ldrk D;skafd mDr MhM ds vuqlkj vfHk;qDrx.k mDR lEifRr ds ,d ek Lokeh ugha gS vkSj uk gh mUgs QySV vkfn cspus dk vf/kdkj gSA tSlk fd MhM dh /kkjk 7] 8 esa fy[kk gSA

5- ;g fd izkFkhZ@vfHk;ksxh us fnukad 27-1-2005 dks okil vkdj mDr ckrs vfHk;qDr jktho ‘kekZ dks crk;h rks vfHk;qDr izkFkhZ ls ukjkt gks x;k vkSj dgus yxk fd geus rsjh cqfdax dSfUly dj nh gS vkSj cqfdax /kujkf’k tCr gks x;h gS vc rqls tks gks dj ysukA

6- ;g fd izkFkhZ@vfHk;ksxh ds }kjk dbZ ckj lEidZ djus o fnukad 842005 dks fyf[kr uksfVl fnyokus ds ckn Hkh vfHk;qDrx.k mijksDr us u rks izkFkhZ@vfHk;ksxh ds uksfVl dk dksbZ tcko fn;k vkSj uk gh izkFkhZ@vfHk;ksxh dh cqfdax /kujkf’k okil dh gSA

7- ;g fd vfHk;qDrx.k ds }kjk /kks[kk/kMh djds csbZekuh ds bZjkns ls izkFkhZ@vfHk;ksxh dh /kujkf’k vadu 50]000@ :i;s cqfdax ds uke ij tek djkdj gMi yh x;h gSA

8- ;g fd vfHk;qDrx.k dks cafdax /kujkf’k tCr djus dk dksbZ vf/kdkj ugha gSA

9- ;g fd vfHk;qDrx.k dk mDr d`R; Hkkjrh; n.M lafgrk dh /kkjk 406] 420 ds vUrxZr n.Muh; vijk/k gSA ftldh lwpuk izkFkhZ ds }kjk fnukad 29-4-05 dks ,l-,l-ih- xkft;kckn dks jftLV~h ds }kjk ns nh x;h gSA

vr% Jheku~ th ls izkFkZuk gS fd ckn ysus lcwr o vko’;d tkap ds vfHk;qDrx.k dks ryc Qjek;k tkdj nf.Mr fd;k tkosA**

“1. That on the basis of the information advertised by Messrs Divine (India) Infrastructure Pvt. Ltd. of the accused persons, the applicant/complainant got booked a mini MIG flat No. 9 situated at B – Block Divine View Park Apartment, Abhay Khand – III, Indrapuram, Ghaziabad after paying an amount of Rs. 50,000/-, the receipt no. 093 dated 05.12.2004 of which was issued by Sri Dinesh Kumar, authorised signatory at the regional office located at property site A-1 Divine Park View Apartment, Abhay Khand III, Indrapuram, Ghaziabad.

2. That the applicant/complainant, before the aforesaid booking, on 04.12.2004, contacted the accused persons, Rajiv Sharma and Dinesh Kumar at the aforementioned regional office and enquired about the aforesaid property and building etc., whereupon in the presence of Seema Grover, wife of the applicant/complainant and Shri Rajendra Kumar, the accused persons told them that the aforementioned property is free of all disputes and the flat would be registered in in his favour in 4 months. They also gave an assurance to manage home loans etc. to the applicant for the purchase of the afore-mentioned property and also stated that, if the complainant desired, he can take home loan from elsewhere.

3. That, as informed by the accused persons, the applicant/complainant again met the accused persons after 15 days on 21.12.2004, and the accused persons, handing a photocopy of the agreement to sale deed/agreement dated 03.12.2004, stated that he could take loan on the basis thereof.

4. That on contacting several banks on the basis of the aforesaid agreement to sale deed/agreement, it came to be known that loan cannot be obtained on the basis of the said deed because the accused, as per the said deed, are neither absolute owners of the said property nor have rights to sell flat etc., as alleged in paras 7 and 8 of the deed.

5. That the applicant/complainant returned on 27.01.2005 and stated the said facts to the accused Rajeev Sharma. On this, the accused got displeased with the applicant and started saying, “We have cancelled your booking. The booking amount has been seized. Now, you may do whatever you can.”

6. That despite being contacted several times and a written notice being served by the applicant/complainant on 08.04.2005, the aforesaid accused neither replied to the notice of the applicant/complainant nor returned the booking amount of the applicant/complainant.

7. That an amount of Rs. 50,000/- of the applicant/complainant has been collected and dishonestly grabbed by the accused by way of cheating on the pretext of booking.

8. That the accused have no right to forfeit the booking amount.

9. The the said act of the accused is an offence punishable u/s 406, 420 IPC; information whereof has been submitted by the applicant to the SSP, Ghaziabad on 29.04.2005.

Hence, it is requested that evidences be taken, necessary investigation be done and the accused be summoned and punished.”

(English translation by Court)

4. It is further contended that even if the contents of complaint are believed to be correct, no offence under Section 406 IPC is made out against applicants.

5. However, I find no substance of aforesaid submission. Section 406 IPC provides punishment for “criminal breach of trust” which may be imprisonment for a term upto three years with fine or with both. The term “criminal breach of trust” is defined in Section 405 IPC, which 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 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 wilfully suffers any other person so to do, commits “criminal breach of trust.

Explanation 1.–A person, being an employer of an estab­lishment whether exempted under Section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.

Explanation 2.–A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and admin­istered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.”

6. The necessary ingredients to attract offence of “criminal breach of trust”, are:

(A) entrustment to any person with property or with any dominion over property;

(B) the person entrusted:

(i) dishonestly misappropriated or converts to his own use of that property;

(ii) dishonestly used or disposed of that property or wilfully suffers any person so to do in violation–

(a) of any direction of law prescribing the mode to which such trust is to be discharged;

(b) of any legal contract made touching the discharge of such trust.

7. Learned counsel appearing for applicants despite repeated query could not conclusively prove that aforesaid complaint does not disclose an offence under Section 406 IPC.

8. When I examine the facts of this case in the light of above discussion, I find that allegations contained therein satisfy ingredients of offence under Sections 406 IPC.

9. Application is, accordingly, dismissed. Interim order, if any, stands vacated.

Order Date : 17.01.2020

Manish Himwan

 

 

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