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Judgment
The Criminal Petition has been filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’), seeking to enlarge the petitioner/accused on pre-arrest bail in Crime No.5 of 2025 of Nellimarla Police Station, Vizianagaram District, registered against the petitioner/accused for the offences punishable under Sections 318(4), 316(2) and 316(5) of the Bharatiya Nyaya Sanhitha, 2023 (for brevity ‘the BNS’).
Sri C.Subodh, the learned counsel for the petitioner, submits that petitioner is innocent of the alleged offence and has been falsely implicated in the case and that petitioner has not committed any offence; Petitioner is a law-abiding citizen; Petitioner is sole earning member of the family and if the petitioner is arrested, it would cause hardship to his dependents; Petitioner undertakes to strictly adhere to any conditions that may be imposed by this Court. In light of the foregoing submissions, the learned counsel prays that the present petition be allowed in the interest of justice.
Per contra, Mr.A.Sai Rohit, learned Assistant Public Prosecutor vehemently opposed the grant of pre-arrest bail to the petitioner, submitting that the investigation is still underway and several material witnesses remain to be examined. It is contended that if the petitioner is granted pre-arrest bail, there is a strong likelihood that she may abscond, thereby hampering the ongoing investigation and evading the process of law. In view of the foregoing submissions, it is urged that the petition be dismissed.
Heard the learned counsel for the petitioner, the learned Assistant Public Prosecutor. Perused the record.
“Whether the Petitioners/Accused is entitled for grant of pre-arrest bail?”
The de-facto complainant alleged that the petitioners have committed offences of criminal breach of trust and cheating. The Hon’ble Apex Court in Delhi Race Club (1940) Ltd. v. State of U.P.,1 at paragraph Nos.44 & 49 held as under:
“44.At the most, the Court of the Additional Chief Judicial Magistrate could have issued process for the offence punishable under Section 420IPC i.e. cheating but in any circumstances no case of criminal breach of trust is made out. The reason being that indisputably there is no entrustment of any property in the case at hand. It is not even the case of the complainant that any property was lawfully entrusted to the appellants and that the same has been dishonestly misappropriated. The case of the complainant is plain and simple. He says that the price of the goods sold by him has not been paid. Once there is a sale, Section 406IPC goes out of picture. According to the complainant, the invoices raised by him were not cleared. No case worth the name of cheating is also made out.
49.From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. [See : Lalit Chaturvedi v. State of U.P. [Lalit Chaturvedi v. State of U.P., (2024) 12 SCC 483 : 2024 SCC OnLine SC 171] and Mideast Integrated Steels Ltd. v. State of Jharkhand [Mideast Integrated Steels Ltd. v. State of Jharkhand, 2023 SCC OnLineJhar 301”
The Hon’ble Apex Court in Arshad Neyaz Khan v. State of Jharkhand2, at paragraph No.21 held as under:
“21.Furthermore, it is pertinent to mention that if it is the case of the complainant/respondent No. 2 that the offence of criminal breach of trust as defined under Section 405 IPC, punishable under Section 406 IPC, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined in Section 415, punishable under Section 420 IPC. This Court in Delhi Race Club (1940) Limited v. State of Uttar Pradesh, (2024) 10 SCC 690 observed that there is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making false or misleading representation i.e. since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriates the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver a property. In such a situation, both offences cannot co-exist simultaneously. Consequently, the complaint cannot contain both the offences that are independent and distinct. The said offences cannot co-exist simultaneously in the same set of facts as they are antithetical to each other.”
Section 406 of ‘the I.P.C.’/Section 316(2) of ‘the BNS’ deals with criminal breach of trust, which presupposes lawful entrustment of property followed by dishonest misappropriation or conversion. Section 409 of ‘the I.P.C.’/Section 316(5) of ‘the BNS’ addresses criminal breach of trust public servant, or by banker, or merchant or agent. In contrast, Section 420 of ‘the I.P.C.’/Section 318(4) of ‘the BNS’ addresses cheating and dishonestly inducing delivery of property, which requires deception at the inception of the transaction. Thus, while Section 409 of ‘the I.P.C.’/Section 316(5) of ‘the BNS’ arises from a breach of an existing fiduciary relationship by a public servant, Section 420 of ‘the I.P.C.’/Section 318(4) of ‘the BNS’ is predicated upon fraudulent inducement at the very outset. The two offences, therefore, operate in distinct spheres.
As seen from the record, from the year 2015 to 2019, there was an allegation of misappropriation of Rs.8,850/- by the petitioner/accused. Petitioner/accused is working as Post Master. The misappropriations alleged against the petitioner/accused came to light in the year 2024 on the report lodged by the Superior Officers of the petitioner/accused and subsequently, the present complaint was lodged. Petitioner is a permanent resident of Vizianagaram District. She has fixed abode. This Court is of the opinion that there is no flight risk if the petitioner is granted pre-arrest bail. The offences of defraud or cheating and misappropriation or breach of trust could not co-exist.
Having regard to the entire facts and circumstances of the case, the gravity and nature of the allegations levelled against the petitioner/accused, this Court deems it fit to grant pre-arrest bail to the petitioner/accused with some stringent conditions.
In the result, the Criminal Petition is allowed with the following conditions:
In the event of arrest, petitioner/accused shall be enlarged on bail subject to executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties, each for the like sum each to the satisfaction of the arresting police officials.
The petitioner/accused shall make herself available for investigation as and when required.
The petitioner/accused shall not cause any threat, inducement or promise to the prosecution witnesses.
The petitioner/accused shall appear before the Station House Officer concerned once in a week i.e. on every Saturday, between 10.00 a.m. and 5.00 p.m., till filing of the charge sheet.
The petitioner/accused shall not leave the limits of the State of Andhra Pradesh without the express permission from the Station House Officer concerned.
The petitioner/accused shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court.
The petitioner/accused shall surrender her passport, if any, to the Investigating Officer. If she claims that she does not have passport, she shall submit affidavit to that effect to the Investigating Officer.