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Judgment
Assailing the order dated 03.02.2016 passed by learned Sub-Divisional Judicial Magistrate, Uda-Kishunganj, Madhepura in connection with Complaint Case No. 187 (C) of 2015 whereby finding prima facie case under Section 341, 323, 504 and 406 of the Indian Penal Code, process has been issued against the petitioner for appearance to face trial.
The complaint case was filed in the Court of learned Sub-Divisional Judicial Magistrate, Uda-Kishunganj, Madhepura by O.P. No. 2 alleging inter alia therein that the complainant runs a private school and in order to develop it further, for which certain constructions were required, she negotiated to purchase land from the petitioner, who being the local landlord has been residing in the vicinity after retirement from the Government service as Government doctor.
After negotiation, a deal was finalized, wherein the complainant and the petitioner orally agreed to sell 2.6 acres of land to the complainant against the consideration amount of Rs. 9,13,000/-. On 26.03.2010, the accused (petitioner) executed a registered sale deed no. 1592 in favour of the complainant with respect to 60 decimals of land (15 kattha) and thereafter in-spite of having received money, the accused petitioner refused to execute sale deed for rest of the land in favour of the petitioner.
It is further alleged that on 28.02.2015 the accused (petitioner) refused to execute any sale deed in favour of the complainant whereafter on 03.03.2015 the complainant gave a legal notice through his lawyer which was responded to by the accused on 28.03.2015 wherein he refused to honour his words with respect to sale of land in favour of complainant. On 20.04.2015, again a notice was given on behalf of complainant, which was not responded. Thereafter on 15.05.2015, husband of complainant requested the accused (petitioner) to execute sale deed, but he became abusive and threw him out of his house.
On 17.05.2015, the accused alongwith many unknown persons who were variously armed, reached the residence of complainant and started threatening and assaulting her, wherein she was man-handled and they forcibly took away one suitcase containing valuable documents and clothes. When the complainant approached the local police for registering a case, the local police did not accept her case and advised her to approach the Civil Court. Hence, the instant complaint case was instituted.
Having instituted the Complaint Case No. 187 (C) of 2015, the learned Sub-Divisional Judicial Magistrate recorded solemn affirmation of the complainant on 26.05.2015 and thereafter a statement of enquiry witnesses, namely Gyan Prakash and Mantu Kumar, was recorded on 20.07.2015 and 20.11.2015 respectively.
Having considered the allegations so levelled in the complaint application as well as statement of complainant and enquiry witnesses on oath, the learned Sub-Divisional Judicial Magistrate, Uda-Kishunganj finding prima facie case under Sections 341, 323, 504 and 406 of the Indian Penal Code vide order dated 03.02.2016 issued processes against the petitioner for his appearance to face trial.
Mr. Avanish Kumar Singh, learned counsel appearing on behalf of the petitioner submits that bare perusal of the averments made in the complaint application reflects purely civil nature of dispute between the parties wherein merely on the basis of oral agreement between the complainant and the petitioner, as claimed by the complainant, sale of land was agreed, whereafter a piece of land appertaining to plot no. 777 (New Khata No. 149), Mauza Gorpar, Anchal Bihariganj, Madhepura measuring 15 katthas (60 decimals) was sold to the complainant by executing a registered sale deed no. 1592 dated 26.03.2010 by the petitioner favouring the complainant. He submits that the complainant only made payment of Rs. 2,13,000/-for which the petitioner has already sold 15 kattahs (60 decimals) of land as detailed hereinabove in favour of the complainant. Thereafter the complainant did not make any payment for purchase of any piece of land from the petitioner. Hence, the petitioner could not execute any sale deed in her favour.
He highlights the legal notice given on behalf of the complainant to the petitioner which is appended to the quashing application as Annexure 2 series to substantiate his defence that the legal notice makes everything clear and it also proves that petitioner already executed sale deed of 15 kattahs for which he has received payment and besides nothing has been paid by the complainant for purchase of any piece of land. On the contrary, the complainant has, by the aforesaid legal notices dated 03.03.2015 and 27.03.2015, even threatened the petitioner to execute further 15 kattahs (60 decimals) of land at his own cost, otherwise a proper legal action would be initiated against him. He by referring to the aforesaid notices, submits that the notice makes everything clear in so far as it admits that the petitioner had already sold 15 kattahs of land against the payment of Rs. 2,13,000/- and further a notice being given to execute sale deed of the same measurement of land i.e. 15 kattahs (60 decimals) which have been sold earlier by the petitioner to complainant, without making any payment thereof.
He also highlights that for the identical and similar kind of relief, the complainant has already filed a Title Suit No. 198 of 2016 on 30.03.2016 which is pending in the Court of the learned Civil Judge (Senior Division) Madhepura, wherein the petitioner has been arrayed as defendant second set. Referring to the aforesaid pendency of civil suit between the complainant and the petitioner, he fortifies his argument with respect to the very nature of case being primarily civil.
The learned counsel for the petitioner submits that petitioner being a very reputed Doctor, who retired in the year 2022 from the post of Principal, P.M.C.H., Patna where he had already served as Head of the E.N.T., P.M.C.H., Patna for fourteen long years. After his retirement, he joined as Principal of Lord Budha Medical College and Hospital, Baidyanathpur, Saharsa and since then, he has been discharging his duties as Principal of the aforesaid medical college. Petitioner hails from a very reputed family of landlord and is known for his philanthropic contributions to the society and he has been associated with many of the educational institutions and colleges imparting education to various strata of society.
In this background, he submits that the documents brought on record in the form of legal notices, the title suit as well as the averments made in the complaint case clearly proves the bonafide conduct of the petitioner wherein he had already executed a sale deed of 15 kattahs (60 decimals) for the consideration amount of Rs. 2,13,000/- lakhs which he has been received from the complainant. Besides, the aforesaid amount, the complainant has not paid even a farthing in order to claim any sale of land in her favour.
Thus, in this view of the nature of allegations, no offence under Sections 341, 323, 504 and 406 of the Indian Penal Code is made out against the petitioner. On the contrary, he submits that this case has been instituted with an ulterior motive to coerce the petitioner to come to the terms of complainant and sale the land to her without being paid any consideration amount in lieu thereof.
The opposite party No. 2, i.e. the complainant, is represented by her lawyer, who supports the allegation so levelled in the complaint application by submitting that bare perusal of the complaint application, allegations against the petitioner for the offences under Sections 341, 323, 504 and 406 of the Indian Penal Code is made out and on account of the petitioner being dishonest, he refused to execute the sale deed even after having received the consideration amount. The complainant runs a school, namely, Little Star and in order to expand the school, she needed land, for which she entered into an oral agreement with the petitioner for purchase of land to the extent of 2.6 acres of land for the consideration amount of Rs. 9,13,000/-, whereafter the amount has been paid through cheque to the petitioner, but he executed sale deed only with respect to 15 kattahs (60 decimals) of land and thereafter he refused to execute any sale deed. This act of the petitioner is squarely covered by the offence as stipulated under Section 406 of the Indian Penal Code. He also submits that the criminal case and the civil suit are two different proceedings wherein two different relief(s) have been prayed for, while in criminal case, the complainant has sought the prosecution of the petitioner for his criminal act, whereas by instituting a civil suit, the complainant has prayed for a relief with respect to the land and mutation thereof in her name. Ultimately, he prays for dismissal of the quashing application whereby petitioner could be relegated to the learned Court below to face the trial for the offence committed by him.
The learned Additional Public Prosecutor for the State supports the contention so advanced on behalf of the complainant i.e. O.P. No. 2 and also says the dispute between the parties could not be decided here in the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, but the proper forum to adjudicate upon the issues between the parties be civil or criminal, is the learned trial Court where the criminal case as well as the civil cases are pending.
Heard rival submissions so advanced on behalf of the respective parties and perused the allegations made in the complaint application as well as the documents brought on record on behalf of the parties in support of their rival claims, besides the order taking cognizance passed by the learned Sub Divisional Judicial Magistrate, Uda-Kishunganj, Madhepura.
The learned Magistrate has found prima facie case primarily for the offence under Section 406 of the Indian Penal Code and with respect to other offences as stipulated under Sections 341, 323 and 504 of the Indian Penal Code, nothing has been averred on behalf of the parties, except for the bald allegations and mere submissions.
At this stage, it would be germane to consider the ingredients of Section 406 of the Indian Penal Code which describes the offence as criminal breach of trust, since in the case at hand, this is the main offence upon which the petitioner has been summoned.
Section 405 of the Indian Penal Code defines the offence of ‘criminal breach of trust’ which stipulates that :-
“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”.”
(Note:- Explanation 1 & 2 of Section 405 is not relevant for the purpose of this case.)
The offence under Section 405 of the Indian Penal Code is made punishable under Section 406 which reads as follows :-
“406. Punishment for criminal breach of trust.—
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
Thus, for Section 406 of the Indian Penal Code to get attracted, there must be a criminal breach of trust in terms of Section 405 of the Indian Penal Code. The essential ingredients for invoking Section 405 of the Indian Penal Code are enumerated hereunder :-
“(a)the accused was entrusted with property, or entrusted with dominion over property;
(b)the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c)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 had made, touching the discharge of such trust.
In other words, for the invocation of the offence of criminal breach of trust, it is expedient that the use of disposal of the property is made by a persons entrusted with or who has dominion over the property. Furthermore, such an act must not only be done dishonestly but also in violation of any direction of law or any contract, express or implied, relating to carrying out the trust.”
As per Black’s Law Dictionary, the definition of the term “Entrustment” means to give (a person), responsibility for something, usually after establishing a confidential relationship.
In the context of Section 406 of the Indian Penal Code proceedings of any criminal prosecution may be quashed if the complaint or F.I.R., even if taken at the face value, does not disclose the essential ingredients of the offence. A clear absence of allegations regarding entrustment or dishonest misappropriation can be a ground for quashing.
The Hon’ble Supreme Court in the case of Anand Kumar Mohatta & Anr. vs. State (N.C.T. of Delhi), Department of Home and Anr., as reported in (2019) 11 SCC 706, emphasized the need to ascertain if the facts make out an offence under Section 406 of the Indian Penal Code.
Section 406 of the Indian Penal Code prescribes the punishment for the offences of criminal breach of trust. This provision plays a crucial role in upholding fiduciary relationship and ensuring accountability for the misappropriation of property entrusted to another. Criminal breach of trust, as defined under Section 405 of the Indian Penal Code, is a nuanced offence, requiring a careful examination of the elements of entrustment, dishonest misappropriation and the violation of legal or contractual duties.
The Hon’ble Supreme Court in the case of Radheyshaym & Ors. vs. State of Rajasthan & Anr., as reported in (2024) SCC OnLine SC 2311, Rashmi Kumar (Smt) vs. Mahesh Kumar Bhada, as reported in (1997) 2 SCC 397, has culled out the aforesaid ingredients as discussed herein to constitute the offence of criminal breach of trust and has laid down that, “the word “Entrustment” carries with its implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any propriety right therein”.
Now examining the present case, in the context of legal propositions both statutory as well as judicial pronouncement as discernible from the preceding paragraphs, certain aspects of the case, at hand, requires consideration in order to decide whether offence under Section 406 of the Indian Penal Code is made out or not.
The plain reading of complaint application as well as the statement of complainant and witnesses, besides the documents viz. legal notice and a copy of title suit appended to the writ application indisputably evince the following facts:-
There was an oral agreement, as claimed, between the parties for sale of 2.6 acres of land for consideration of an amount to the tune of Rs. 9,13,000/-.
Admittedly, the complainant made payment of Rs. 2,13,000/- for which 15 kattahs (60 decimals) of land had already been executed vide registered Sale Deed No. 1592 dated 26.03.2010 in favour of the complainant by petitioner.
Neither in the entire complaint nor in the legal notices, the complainant has disclosed that besides the aforesaid amount of Rs. 2,13,000/- , any other amount has been paid to the petitioner for executing another sale deed.
From the perusal of last part of the legal notices dated 03.03.2015 and 27.03.2015, it is manifestly evident that the complainant admits of execution of sale deed in her favour by the petitioner for the previous amount so paid and thereafter, the petitioner was called upon to execute another sale deed at his own cost for 15 kattahs (60 decimals) of land, otherwise he will have to face legal consequences.
There is no written agreement between the parties for sale and purchase of any piece of land.
Besides the payment of Rs. 2,13,000/-, as admitted by the complainant, no other documents or transactions have been brought on record showing any payment made in favour of the petitioner on behalf of the complainant.
The title suit has already been preferred by the complainant arraying petitioner as defendant second set besides other defendants, which is pending in the competent Court of civil jurisdiction at Madhepura.
In the backdrop of the aforesaid factual matrix, as culled out from the documents brought on record, there is not an iota of doubt that dispute between the parties is purely of civil nature. The petitioner has already executed a sale deed vide Sale Deed No. 1592 dated 26.03.2010 in favour of the complainant for 15 kattahs (60 decimals) of land against the consideration money of Rs. 2,13,000/- already received by him. Thereafter, not a single farthing has been paid to the petitioner by the complainant with respect to purchase of another piece of land.
The averments made in the plaint of Title Suit No. 198 of 2016 dated 30.03.2016 as annexed to this quashing application also fortifies the aforesaid contention with respect to civil nature of litigation and dispute between the parties.
The allegations as levelled in the present complaint, does not satisfy any of the ingredients of the offence of criminal breach of trust as defined under Section 405 of the Indian Penal Code so as to make it an offence punishable in terms of provision as contained under Section 406 thereof. There is absolutely neither any entrustment of any kind of property, valuable security or movable property/money nor is there dishonest misappropriation of the same with fraudulent intention. The allegations of assaulting, cheating and threatening against the petitioner so as to make it an offence under Sections 341, 323, 504 and 406 of the Indian Penal Code lacks the basis for supporting such kind of allegation. These allegations appears to be an ornamental one and has been levelled merely with an intention to implicate the petitioner in any manner so that he could be compelled and coerced to execute a sale deed in favour of the petitioner.
Thus, the instant prosecution seems to be an outcome of mal-intention, where the complainant has lodged the case with ulterior motive just in order to settle scores with the petitioner for not executing the sale deed and that too without paying any consideration money thereof. Setting the criminal Court in motion just in order to satiate ones personal grudge and to compel the persons to come to the terms just in order to accomplish ones illegal demands is unknown to the canon of law. The instant case is perfect illustration where proceedings of the Court have not only been abused, but misused, as these criminal proceedings has been initiated with malafide intention for wreaking vengeance or to cause harm on the petitioner for not having executed sale deed without receiving any consideration amount.
This Court finds that the categories (1), (3), (5) and (7) enlisted in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. reported in 1992 Supp. (1) SCC 335, are squarely applicable to the facts of the present case, making it a fit case for quashing of the criminal proceedings pending against the accused, which reads as hereinbelow:-
“(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In this conspectus, the allegation of complainant is of doubtful veracity tainted with malice which shows clear abuse of the judicial proceedings to settle personal score and as such, summoning order dated 03.02.2016, passed by learned Sub-Divisional Judicial Magistrate, Uda-Kishunganj, Madhepura in Complaint Case No. 187 (C) of 2015, is hereby quashed and set aside.
There shall be no order as to cost.
All pending interlocutory application(s), if any, stands disposed off.