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Rajkanwarsingh Sevasingh Soki … vs The State Of Maharashtra And Anr on 14 March, 2018

1 Cri WP 1620-2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1620 OF 2017

1) Rajkanwarsingh Sevasingh Soki,
Age 57 years, Occupation Business,
Residing at Flat No.62, Rutu
Enclave Ghodbunder Road,
Thane (West).

2) Ganesh Haribhau Wankhede,
Age 39 years, Occupation Service,
C/o. Ravindra Shrawan Ghate,
Residing at Gajanan Maharaj
Society, Gat No. 102, Savant
Nagar, Bhosari, Pune. .. Petitioners.

VS.

1) The State of Maharashtra,
(At the instance of Sr. Inspector
of Police, M.I.D.C., Waluj
Aurangabad City Police Station,
District Aurangabad.

2) Laxman Rabhaji Darkunde,
Age 55 years, occupation Business,
R/o. Plot No.35, Dnyaneshwarnagar,
In Front of Vibhagiya Krida Sankul,
Garkheda Parisar, Aurangabad. .. Respondents

—-
Mr. Mobin H. Shaikh, Advocate for petitioners.
Mr. S. W. Munde, Additional Public Prosecutor for
respondent No. 1 / State.
—-

CORAM : PRASANNA B. VARALE
SMT. VIBHA KANKANWADI, JJ.
DATE : 14-03-2018

ORAL JUDGMENT ( Per Smt. Vibha Kankanwadi. J.)

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2 Cri WP 1620-2017

1. Rule. Rule made returnable forthwith with the consent of

learned counsels for the parties, the petition is heard finally.

2. By invoking powers of this Court under Article 226 of the

Constitution of India and Section 482 of the Code of Criminal

Procedure, the applicants have prayed for quashment of the First

Information Report (hereinafter referred as ‘FIR’) bearing Crime No.

242 of 2017 registered with M.I.D.C. Waluj, Aurangabad City Police

Station, for the offence punishable under Section 406 read with 34

of the Indian Penal Code.

3. The petitioners have come with a case that, petitioner

No.1 is owner of a company by name M/s. Arnav Castings and

Engineers, having its factory at Pune and petitioner No.2 is working

as a Manager with petitioner No.1. The company is engaged in the

business of manufacturing Sand Cores for Aluminum Castings.

Respondent No.2 has filed FIR with M.I.D.C. Waluj Aurangabad City

Police Station alleging that, his wife Sou. Sunanda Laxman Darkunde

is running a company by name Jay Industries at Plot No. M 47/01,

MIDC Waluj, Aurangabad. The informant has stated that, he is

looking after the affairs of the industry. His company is producing

Resin Coated Sand and Sand Core. The company started selling

resin quoted Sand to Raj Singh, owner of Arnav Castings and

Engineers, Chakan, Pune since January 2014. As the said company

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3 Cri WP 1620-2017

was supplying its material to renowned company Endurance Group,

the respondent believed in the said company. The company initially

made regular payments but after some days started making the

payments after due dates. Persistently, he was required to make

phone calls which resulted in part payments. However thereafter

there was refusal and also threatening in abusive language. It was

told to him that, if he would come to Pune for payments then he

would be killed. The amount of Rs.7,63,609/- was due and payable

from 2014 to 2015 from the said company owned by Raj Singh. A

mail was sent send by Raj Singh that he will settle the payment in

the month of January 2015 but again avoided to receive phone calls.

Informant went to Pune for the recovery of the said amount,

however Mr. Wankhede, the Manager of Arnav Castings and

Engineers used abusive language and with the help of goondas

informant was made to run away from the factory. The informant

therefore says that, he has been deceived. He tried to take action

against the accused persons but there was no response. However,

then he filed a complaint application on 08-02-2017 wherein

permission was sought from higher officers. On the basis of the

permission, his report has been taken and offence has been

registered.

4. The petitioner have contended that, it is very much clear

from the contents of the report that, there was transaction between

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4 Cri WP 1620-2017

both the companies and it was of purely civil nature. It has been

stated that, in order to pressurize the petitioners to make the

payments, the report has been lodged, and therefore, they have

prayed for quashing and setting it aside.

5. Respondent No.1- State has resisted the application on

the ground that the contents of the FIR disclose commission of the

offence.

6. Respondent No.2 – original informant was duly served

but he has not appeared in the matter.

7. It has been submitted on behalf of the petitioners that,

when the transaction was of purely civil nature, there was no

question of invoking Section 406 of the Indian Penal Code. He relied

on the decision in Binod s/o Ratan Sarkar Ors. Vs. The State of

Maharashtra Anr., (2014) 10 Supreme Court Cases 663. The

question before the Hon’ble Supreme Court was whether the charges

under Section 406 of the Indian Penal Code and the criminal

complaint for criminal breach of trust for allegedly retaining the bill

amount payable to respondent No.2 is liable to be quashed and the

answer was given in the negative. Similar view was also taken in

Sunil Kumar Vs. M/s. Escorts Yamaha Motors Ltd. And Others,

2000 All MR (Cri) 134, and in V. Selvapoathy Pv. Venkataswamy

Naidu Versus State of Maharashtra and others, Criminal Writ

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5 Cri WP 1620-2017

Petition No. 584 of 2008 with connected matter, decided by this

Court on 19-12-2012. It has been stated that the facts of the last

case are similar to the present case and it has been observed by this

Court that,

“10. We have noticed that even if each and every word
and statement contained in the first information report
as well as chargesheet and statements of the witnesses
as recorded by the Investigating Officer are accepted to
be true without further evidence, and on that basis the
offence of breach of trust is registered, yet cheating, etc.
is not disclosed.”

“11. As we have noticed, the grievance of the
petitioners falls squarely within the description of the
term “breach of promise to make the payment” in terms
of the stipulations i.e. breach of contract and nothing
beyond that.”

“12. There is no element of breach of trust involved,
seen from any angle. Therefore, continuation of trial any
further, would be sheerly abuse of process of law, apart
from the fact that the accused persons will be vexed at
law, which exercise is certainly avoidable.”

8. We agree with the submission on behalf of the petitioner.

In order to attract provisions of Section 406 of the Indian Penal

Code, we will have to consider Section 405 of the Indian Penal Code.

Following observations in Binod Kumar’s case (Supra) are in order to

consider the ingredients of the offence.

“15. Section 405 IPC deals with criminal breach of trust.

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6 Cri WP 1620-2017

A careful reading of the 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 should dishonestly misappropriate or
convert to his own use that property, or dishonestly use
or dispose of that property or wilfully suffer any other
person to do so;

(c) that such misappropriation, conversion, use or
disposal should be in violation of any direction of law
prescribing the mode in which such trust is to be
discharged, or of any legal contract which the person has
made, touching the discharge of such trust.”

“16. Section 406 IPC prescribes punishment for criminal
breach of trust as defined in Section 405 IPC. For the
offence punishable under Section 406 IPC, prosecution
must prove:

(i) that the accused was entrusted with property or with
dominion over it; and

(ii) that he (a) misappropriated it, or (b) converted it to
his own use, or (c) used it, or (d) disposed of it.
The gist of the offence 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.”

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7 Cri WP 1620-2017

It has been further observed that,

“18. ……..To make out a case of criminal breach of
trust, it is not sufficient to show that money has been
retained by the appellants. It must also be shown that
the appellants dishonestly disposed of the same in some
way or dishonestly retained the same. The mere fact
that the appellants did not pay the money to the
complainant does not amount to criminal breach of
trust.”

9. If we considered the above contents of the FIR lodged by

respondent No.2, it is very much clear that, it was a civil dispute and

at the most even if the facts mentioned therein are accepted as true,

that will amount to “Breach of Promise to make the payment”. The

observations of this Court in V. Selvapoathy’s case (Supra) are

applicable here, and therefore, we are satisfied that this is a fit case

where the FIR deserves to be quashed and set aside. We cannot

allow the petitioners to face the trial when the ingredients of the

offence has not been made out on the face of the FIR. We,

therefore, make rule absolute in terms of prayer Clause “A”.

ORDER

1) Petition is hereby allowed.

2) Rule is made absolute in terms of prayer
Clause-‘A’.

(SMT. VIBHA KANKANWADI) (PRASANNA B. VARALE)
JUDGE JUDGE
vjg/-.

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