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Ravi Kant And Others vs State Of U.P. on 5 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 34

Case :- APPLICATION U/S 482 No. – 4440 of 2003

Applicant :- Ravi Kant And Others

Opposite Party :- State of U.P.

Counsel for Applicant :- Sameer Jain

Counsel for Opposite Party :- Govt. Advocate,B.N. Tripathi,H.N. Sharma,Mohd. Samiuzzaman Khan,P.K.Pandey,Pramod Kumar Srivastava,S.Shahnawaz Shah,Ved Prakash Dwivedi

Hon’ble Sudhir Agarwal,J.

1. Heard Sri Sameer Jain, learned counsel for applicants and learned A.G.A. for respondent-State. None appeared on behalf of opposite party no. 2 though the case is called in revised.

2. This application under Section 482 Cr.P.C. has been filed praying for quashing of proceedings in Complaint Case No. 878 of 2002 (SectionGeeta Devi vs. Avinash Chand and others), under Section 406 IPC.

3. It is contended that there is no allegation of misappropriation therefore, no offence under Section 406 IPC is made out, hence, complaint is liable to be quashed.

4. 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 SectionMiscellaneous 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’ SectionState 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.”

5. 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.

6. Perusal of complaint filed as Annexure 4 to the affidavit filed in support of application shows that ‘entrusment’ and continuous keeping of goods by accused do satisfy ingredients of Section 406 IPC and therefore, it cannot be said that ex facie allegations in complaint do not constitute offence under Section 406 IPC.

7. Counsel for applicants next contended that complaint is barred by limitation, inasmuch as, opposite party no.2 was ousted from the house on 12.7.1996 but complaint has been filed on 08.5.2002.

8. However, in my view, limitation will commence from the date demand for return of goods has been denied and according to complaint, it is 01.04.2002. Therefore, complaint is within time.

9. No other point has been argued.

10. Application is rejected.

11. Interim order, if any, stands vacated.

Order Date :- 5.11.2019

KA

 

 

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