AI Structured Summary
Not yet generated for this judgment
Judgment
Assailing the order dated 28.06.2016 passed by the learned Judicial Magistrate, 1st Class, East Champaran at Motihari in Complaint Case No. 637-C of 2013 (Tr. No. 6980 of 2015), whereby the learned Trial Court took cognizance of the offences under Sections 406, 423 and 504 of the Indian Penal Code (in short the I.P.C.) against the petitioner and issued process against him for his appearance to face trial, the present application has been preferred under Section 482 of the Code of Criminal Procedure (in short the Cr.P.C).
The prosecution case, as it emerges from the materials placed on record, is that complainant/opposite party No. 2, namely, Md. Ali Ansari, filed a complaint case on 21.03.2013 before the learned Chief Judicial Magistrate, East Champaran at Motihari, alleging commission of offences by the petitioner.
It is alleged in the complaint that the petitioner, namely, Md. Yasin @ Md. Yaseen, had induced the complainant/opposite party No. 2 and other persons on the pretext of securing their appointment as teachers. According to the complainant/opposite party No. 2, the petitioner represented that he could facilitate such appointments and, on the basis of the said representation, demanded money from the complainant/opposite party No. 2 and other persons.
It is further alleged that, acting upon the aforesaid representation, the complainant/opposite party No. 2 and the other persons paid a sum of Rs. 1,50,000/- each to the petitioner on 24.04.2011. The said amount was allegedly paid in the expectation that appointment letters would be issued in their favour. However, the appointment letters were not made available to the complainant/opposite party No. 2 or the other persons.
Despite the lapse of time and repeated requests, the petitioner allegedly failed to fulfil his promise of securing the appointments or returning the money received from the complainant/opposite party No. 2.
It is alleged that, when the complainant/opposite party No. 2 demanded the return of the amount paid by him, the petitioner refused to return the same. The complaint also levelled allegations of assault, abuse and other acts attributed to the petitioner, on the basis of which the complainant/opposite party No. 2 sought initiation of criminal proceedings against him.
On the basis of the averments made in the complaint petition, a complaint case was filed on 21.03.2013 in the Court of learned Chief Judicial Magistrate, East Champaran, Motihari, bearing Complaint Case No. 637-C of 2013, and thereafter, the solemn affirmation of the complainant/opposite party No. 2 and the statements of six witnesses were recorded in course of inquiry.
Having perused the same, the learned Judicial Magistrate, 1st Class, East Champaran, Motihari vide order dated 28.06.2016, finding prima facie case under Sections 406, 423 and 504 of the I.P.C., directed issuance of process against the petitioner for his appearance to face trial.
Being aggrieved by the aforesaid order of cognizance and the continuation of the criminal proceeding, the petitioner has approached this Court invoking its inherent jurisdiction under Section 482 of the Cr.P.C.
Mr. Bijay Shankar Choubey, learned counsel appearing on behalf of the petitioner submits that the impugned order of cognizance is bad in law and that the allegations made in the complaint, even if accepted in their entirety, do not constitute the offences alleged against the petitioner.
It is submitted that the complaint has been instituted with an ulterior motive and that the criminal proceeding has been initiated to exert pressure upon the petitioner in connection with the alleged monetary transaction. According to the petitioner, the allegations relating to the payment of money and the alleged failure to secure appointments do not, by themselves, constitute the commission of any criminal offence, much less the offence under Section 406 of the I.P.C.
Learned counsel submits that the essential ingredients of the offence punishable under Section 406 of the I.P.C. are conspicuously absent. It is contended that the complaint does not disclose the entrustment of any property to the petitioner in the manner contemplated by law nor does it disclose any dishonest misappropriation or conversion of the alleged amount to their own use.
It is further submitted that the allegations concerning the alleged payment of money in connection with the proposed appointments, even if taken at their face value, do not establish the requisite criminal intention or the dishonest misappropriation necessary to attract the penal provisions to be invoked against the petitioner.
Learned counsel also submits that the allegations relating to assault, criminal intimidation or abuse have been made in a vague and omnibus manner and that the complaint does not disclose any specific material sufficient to constitute the offences under Sections 323 and 504 of the I.P.C.
It is argued that the criminal proceeding has been instituted after the alleged transaction and that the allegations, viewed in its entirety, indicate an attempt to give a criminal colour to a monetary dispute. It is contended that the continuation of such proceedings would cause undue harassment to the petitioner and would amount to an abuse of the process of the Court.
On the aforesaid grounds, learned counsel for the petitioner prays that the impugned order dated 28.06.2016 and the entire criminal proceeding arising out of Complaint Case No. 637-C of 2013 be quashed in exercise of the inherent jurisdiction under section 482 of Cr.P.C. of this Court.
Mr. Lokesh kumar Singh, learned counsel appearing on behalf of complainant/opposite party No. 2 submits that the petitioner, on the pretext of securing appointment as teachers, induced the complainant/opposite party No. 2 and other persons to pay substantial amounts of money, but failed to provide the promised appointment letters or return the amount received.
It is submitted that the petitioner has dishonestly retained the money despite repeated demands by the complainant/opposite party No. 2 and that the allegations made in the complaint disclose the commission of cognizable offences. The learned Magistrate has rightly taken cognizance upon consideration of the materials available on record.
It is, thus, contended that the complaint discloses a prima facie case against the petitioner and that the criminal proceeding ought not to be quashed at its threshold. Accordingly, learned counsel for complainant/opposite party No. 2 opposes the present application and prays for its dismissal.
Mr Rajendra Singh Shastri, learned Additional Public Prosecutor for the State, submits that the allegations made in the complaint disclose a dispute arising out of the alleged payment of money for securing appointments as teachers. It is submitted that the impugned order has been passed upon consideration of the materials available on record.
It is further submitted that the inherent jurisdiction under Section 482 of the Cr.P.C. is to be exercised sparingly and in view of nature of allegation in the complaint, the petitioner may be relegated to the learned Trial Court to face the trial.
Heard rival submissions advanced on behalf of the parties and perused the averments made in the complaint petition as well as the materials brought on record.
The paramount question seems to emerge that whether for an illegal purpose giving any amount to any person would constitute an offence under Section 406 of the I.P.C. or not?
At this stage, it would be germane to consider the ingredients of Section 406 of the I.P.C., which describes the offence as “Criminal Breach of Trust”, since in the case at hand, this is the main offence under which the petitioner has been summoned.
Section 405 of the I.P.C. 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 I.P.C. is made punishable under Section 406 I.P.C., 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 I.P.C. to get attracted, there must be a “Criminal Breach of Trust” in terms of Section 405 of the I.P.C. The essential ingredients for invoking Section 405 of the I.P.C. 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 willfully 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.”
Thus from the aforesaid discussion, it is evident that in the case at hand, there is no ‘entrustment’ of any money or valuable security which could have been misappropriated or converted to his own use by the petitioner. Thus, no ingredients of the offences under Section 406 of the I.P.C., as defined under Section 405 of the I.P.C., for which punishment is prescribed under Section 406 of the I.P.C., seems to be attracted in the case at hand.
On the contrary, it appears that the oral submission, without any cheat of paper or evidence has been levelled that an amount of Rs. 1,50,000/- has been given to the petitioner by the complainant/opposite party No. 2 for getting employment of his son as teacher.
Now the primordial issues/questions which crop up for consideration are :-
Whether in the meaning and scope of the word ‘entrustment’, will it include and encompass entrustment of property, for an illegal purpose? In other words, giving money for an illegal purpose would amount to entrustment in the sense that owner of the property retained ownership and gave it to the party in crime, in trust?
Was such an entrustment made for user in accordance with law or a legal contract?
Will it contemplate a situation where consciously having entrusted property for a purpose contrary to law and a manner of disposal contrary to law shall by the person making such illegal entrustment, can claim to retain dominion over the property so as to invite the applicability of the Penal provisions under Section 406 of the I.P.C.? And,
Shall any person receiving the amount for such an illegal purpose, if fails in his promise to perform the agreed work, be charged with the offence under Section 406 of the I.P.C. or not?
It is a well settled judicial principle that there cannot be any entrustment of a property for its use or disposal contrary to the law or an illegal contract with the owner of the property retaining dominion over the property. The moment the owner of the property parts with the property for an illegal purpose, ‘entrustment’, as defined in the Penal Code under Section 405, has no application at all.
Section 23 of the Indian Contract Act declares void a contract, which is contrary to the law or opposed to public policy.
Section 23 of the Indian Contract Act reads as hereunder:-
“23.What considerations and objects are lawful, and what not.-The consideration or object of an agreement is lawful, unless— it is forbidden by law ; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent ; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”
Therefore, even under the civil law, the agreement between the parties is unlawful in its very inception as both agreed to do something which is prohibited in law. The contract ex facie being unlawful, both parties can be said to have intended to exploit the law for an illegal purpose.
The bare perusal of the averments made in the complaint case revealed that the complainant/opposite party No. 2 has spoken to the petitioner for getting employment of his son in the Education Department for an amount of Rs. 1,50,000/-and pursuant thereto, the complainant/opposite party No. 2 claimed to have delivered Rs. 1,50,000/- to the petitioner for obtaining such public appointment in the Government Department.
If the allegations, levelled as aforesaid, seems to be correct, the parties were in pari delicto to commit an offence. Employment in the Government Department is available on advertisement and selection and not purchased by money. Such an appointment is an outright illegal appointment, which is an offence under the I.P.C. and if the agreement could not be executed, can it be said that it constitutes an offence under the Indian Penal Code when under the Indian Penal Code, the agreement itself was an offence.
The another aspect assumes significance at this stage, if the complainant/opposite party No. 2 voluntarily parted with the money for an illegal purpose for securing appointment in government service for a monetary consideration, which itself was an offence and he can be booked for such a crime.
In the case of Chellor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore-Cochin, reported in (1952) 2 SCC 392, the Hon’ble Supreme Court in paragraph 23 has held as follows:-
“23.The other point that requires consideration is, whether on the prosecution evidence as it stands, the accused can be held guilty of criminal breach of trust? As laid down in Section 385 of the Cochin Penal Code (corresponding to Section 405 of the Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In the case before us, it is not disputed that if the sum of Rs 23,100 was paid by PW 1 to the appellant by way of illegal gratification to induce the latter to make an allotment of cloth in his favour, there could be no question of entrustment in such payment. The payee would then receive the money on his own behalf and not on behalf of or in trust for anybody else. The criminality of an act of this character would consist in illegal receipt of the money and the question of subsequent misappropriation or conversion of the same would not arise at all. ……………..”
Further, in the case of Vijay Sharma and Anr. Vs. State of Bihar, reported in 2011 (1) PLJR 780, wherein an identical issue was raised where the complainant paid a sum of money to the accused persons promising them to provide job in the police force and when the job was not provided, a complaint case was filed. The Court has held that when a person knowingly and with his consent parts of its property or money for grant of appointment in an illegal manner, offences under Sections 405, 415 and 420 of the I.P.C. are not made out. While passing the aforesaid judgment in the case of Vijay Sharma (supra), the Court has relied upon the ratio laid down in the case of Chellor Mankkal Narayan Ittiravi Nambudiri (supra).
Thus the issues/questions framed in the preceding paragraph No. 30 are answered as follows :-
(1.) Issue No. (i) - Answered in negative;
(2.) Issue No. (ii) - Answered in negative;
(3.) Issue No. (iii) - Answered in negative; and
(4.) Issue No. (iv) - Answered in negative;
Thus, in the given set of facts, the law laid down by the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, is relevant, particularly sub-paragraphs (1) (5) and (7) of paragraph 102, which reads as hereunder:-
“102.………….. (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. …………………
(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 malafide 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." applies with full force in the case at hand and as such, the criminal prosecution which since its inception, is absurd and improper, could not be allowed to be continued and in order to prevent the vexatious mala fide prosecution of the petitioner, relying upon the aforesaid cases as laid down in the case of Bhajan Lal (supra) and Vijay Sharma (supra), which squarely applies in the case at hand, this Court is of the considered view that the instant criminal prosecution is fit to be set aside in order to prevent an abuse of the judicial process.
Thus, in the conspectus of the aforesaid factual and legal analysis, the impugned order dated 28.06.2026, whereby the learned Judicial Magistrate, 1st Class, East Champaran at Motihari, in connection with Complaint Case No. 637-C of 2013 (Tr. No. 6980 of 2015), directed issuance of process against the petitioner for his appearance to face trial, clearly reflects total non-application of judicial mind.
Ex-consequenti, the order impugned in the present application dated 28.06.2016 passed by the learned Judicial Magistrate 1st Class, East Champaran, Motihari in connection with Complaint Case No. 637-C of 2013 (Tr. No. 6980 of 2015), whereby cognizance of the offences under Sections 406, 423 and 504 of the I.P.C. has been taken against the petitioner being wholly unsustainable in the eyes of law, is, hereby, quashed and set aside, qua the petitioner. Consequently, all criminal proceedings emanating from Complaint Case No. 637-C of 2013 (Tr. No. 6980 of 2015) are also, hereby, quashed and set aside.
The application is, accordingly, allowed.
Interlocutory application(s), if any, shall also stand disposed of accordingly.