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Judgment
By the Court:- I.A. No.10534 of 2026
Heard the parties.
Learned counsel for the petitioner submits that this interlocutory application has been filed for early hearing of this Criminal Miscellaneous Petition.
Since the hearing of this Criminal Miscellaneous Petition is being taken up today, hence, this interlocutory application is disposed of being infructuous.
Cr.M.P. No.3538 of 2022
Heard the parties.
This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the Complaint Case and the entire criminal proceedings in connection with Complaint Case No. C-924 of 2018 of the court of the learned Chief Judicial Magistrate, Garhwa.
At the outset, the learned counsel for the petitioner submits that the case is next fixed to 15.09.2026 in the trial court for consideration of framing of charge.
The brief fact of the case is that the petitioner approached the complainant to supply roofing Asbestos sheets. The complainant paid him cheques of different amounts. The petitioner supplied less material to the extent of Rs.3,09,006/-. On the basis of the complaint, the statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Chief Judicial Magistrate, Garhwa has found sufficient material for prima facie the offence punishable under Section 406 of the Indian Penal Code vide the order dated 28.07.2021 passed in the said Complaint Case No. C-924 of 2018.
The learned counsel for the petitioner relies upon the judgment of this Court in the case of Sandeep Bhargava vs. The State of Jharkhand & Another and allied case reported in 2024:JHHC:10399 and submits that in that case, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 para-18 of which reads as under :-
“18.In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. 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.” Emphasis supplied)
and submits that therein, the Hon’ble Supreme Court of India has reiterated the settled principle of law that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons but it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same.
Learned counsel for the petitioner next submits that the money paid for purchase of article cannot be said to be entrusted property as the word ‘entrusted’ has been used in Section 405 of the Indian Penal Code; the punishment of which has been provided for in Section 406 of the Indian Penal Code. It is further submitted that even though the entire allegations made against the petitioner are considered to be true, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.
Learned Public Prosecutor appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in this Criminal Miscellaneous Petition and submit that if the entire allegations made against the petitioner are considered to be true in their entirety, the offence punishable under Section 406 of the Indian Penal Code is made out. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.
Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that the amount paid towards consideration cannot be said to have been entrusted with the accused persons by complainant and merely because the accused persons are refusing to register the sale, it does not amount to misappropriation of the advance payment as has been held by the Hon’ble Supreme Court of India in the case of Radheyshyam & Others v. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311, para-12 of which reads as under:-
“12.In the present case, the appellants were not entrusted with any property by respondent no. 2 -complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.”
The essential ingredients to constitute the offence punishable under Section 406 of the Indian Penal Code are as under:-
(i)There must be an entrustment and,
(ii)There must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract. as has been held by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641
Now coming to the facts of the case, there is absolutely no allegation of any entrustment against the petitioner nor is there any allegation of dishonest misappropriation of entrusted property. At best, it is a case of short supply of some article in course of a business transaction. In the absence of the essential ingredient of entrustment of property or dishonest misappropriation of the entrusted property, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. Hence, continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the Complaint Case and the entire criminal proceedings in connection with Complaint Case No. C-924 of 2018 of the court of the learned Chief Judicial Magistrate, Garhwa, be quashed and set aside against the petitioner named above.
Accordingly, the Complaint Case and the entire criminal proceedings in connection with Complaint Case No. C-924 of 2018 of the court of the learned Chief Judicial Magistrate, Garhwa, is quashed and set aside against the petitioner named above.
In the result, this Criminal Miscellaneous Petition is allowed.