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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.568 OF 2017
Sumeet Kishor Nandeshwar,
Aged about 38 years, Occ.
Business, r/o. N.I.T. Ground,
Plot No.559-B, Ekta Colony,
Yadav Nagar, Wanjari Layout,
Dr.Ambedkar Marg, Nagpur,
Tq. and Distt. Nagpur. .......... APPLICANT
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer,
Police Station, Ramnagar,
Chandrapur, Tq. and Distt.
Chandrapur.
2. Yogesh Jayant Mamidwar,
Aged about 26 years, r/o.
Wagaon Road, near Gajanan
Mandir, Ram Nagar,
Chandrapur, Tq. and Distt.
Chandrapur. .......... RESPONDENTS
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___________________________________________________________
Mr.Y.B.Mandpe, Advocate h/f. Mr.H.N.Potbhare,
Advocate for the Appellant.
Mr.S.S.Doifode, A.P.P. for Respondent No.1/State.
____________________________________________________________
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
DATE : 15.11.2017.
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. The Criminal Application is admitted and heard finally with the consent of the learned Counsel for the respective parties.
2. It is submitted that the applicant is a businessman doing business with a name and style "M/s. UN Multitech Engineers and Contractors" having partnership firm and doing the business of constructing the PEB Sheds by taking various contracts. On 19.9.2016, an agreement between the applicant and respondent no.2 was executed. The said agreement is having several conditions and the same is incorporated between the applicant and respondent no.2 and the same is duly signed and accepted by both the parties. As per ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:42:37 ::: 3 apl568.17.odt the terms of the agreement, the present applicant used to prepare the various maps as per the work allotted to the present applicant. Due to various changes made by respondent no.2, the applicant was not allowed to start work at the said site for the reasons best known to respondent no.2. Without there being any intimation from respondent no.2, present applicant has received a mail cancelling the agreement from the side of respondent no.2. Applicant came to know the fact that respondent no.2 was not agreeable to confirm the increasing price in the material and was not ready to accept the proposal and himself cancelled the said contract/agreement. Respondent no.2 lodged a false report on 16.3.2017 in Police Station, Ram Nagar, Chandrapur. First Information Report was registered vide Crime No.550 of 2017 for the offence punishable under Section 406 of the Indian Penal Code. At last, it is prayed to quash and set aside the F.I.R. lodged by respondent no.2.
3. Heard the learned Counsel for the respective parties. Offence punishable under Section 406 of the Indian Penal Code is registered against the applicant. Section 406 of the Indian Penal Code reads as under :
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4 apl568.17.odt Section 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.
4. Criminal breach of Trust is defined under Section 405 of the Indian Penal Code 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 Miscellaneous Provisions Act, 1952 (19 of 1952), or not] ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:42:37 ::: 5 apl568.17.odt 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' State 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.] ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:42:37 ::: 6 apl568.17.odt
5. On a perusal of Section 406 of the Indian Penal Code, it appears that there is a civil dispute between the applicant and respondent no.2. Police Station, Ram Nagar, Chandrapur has wrongly registered the crime. There is no allegation that any property was entrusted to the applicant and he has committed breach of trust. Hence, prima facie, offence punishable under Section 406 of the Indian Penal Code is not made out. Therefore, in view of Judgment of Hon'ble Supreme Court in the case of S tate of Haryana .vs. Bhajan Lal reported in 1992 Supp (1) SCC 335, First Information Report bearing Crime No.550 of 2017, dt.16.3.2017 registered by Police Station, Ram Nagar, Chandrapur for the offence punishable under Section 406 of the Indian Penal Code is liable to be quashed and set aside. Hence, we pass the following order.
// ORDER // The application is allowed in terms of prayer clause (i) therein.
First Information Report bearing Crime No.550 of 2017, dt.16.3.2017 registered by Police Station, Ram Nagar, Chandrapur for the offence punishable under ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:42:37 ::: 7 apl568.17.odt Section 406 of the Indian Penal Code against the applicant is quashed and set aside.
No order as to costs.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:42:37 ::: 8 apl568.17.odt ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:42:37 :::