Peer Mohammad vs State Of U.P. And Another
2016 Latest Caselaw 2292 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 5144 of 2004
 
Petitioner :- Peer Mohammad
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Om Praksh Lohia
 
Counsel for Respondent :- Govt. Advocate, V.K. Sharma, S.N. Yadav
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Nasiruzzaman, learned counsel for the petitioner and learned A.G.A. for respondent no. 2. None appeared on behalf of respondent no. 2 though the names of Sri V.K. Sharma and Sri S.N. Yadav, Advocates are shown in cause list and case is called in revised.

2. The writ petition is directed against the summoning order dated 21.02.2003 passed by Civil Judge (Junior Division)/ Magistrate, Sikohabad and Revisional order dated 21.06.2004 passed by Additional Sessions Judge, Court No. 1, Firozabad, whereby Criminal Revision No. 134 of 2003 has been dismissed.

3. Learned counsel for the Petitioner contended that complaint, if read in its entirety and treating allegations contained therein true, the same do not disclose any offence under Section 405 IPC, hence order of summoning under Section 406 IPC is patently illegal and without jurisdiction.

4. The complaint has only five paragraphs and the same reads as under:

^^1- ;g fd ifjoknh Hkkjr lsok laLFkku vEcsdjuxj fljlkxat dk v/;{k gS rFkk Hkkjr lsok laLFkku fLFkr vEcsdj uxj dLck o Fkkuk fljlkxat ftyk fQjkstkckn mRrj izns'k [kknh xzkeks|ksx cksMZ ls foRrh; lgk;rk izkIr ekU;rk izkIr laLFkk gS tks twrk fuekZ.k o fcdzh dk dk;Z djrh gSA

2- ;g fd vfHk;qDr ifjoknh ds laLFkku ls twrk dk dkjksckj djrk Fkk rFkk laLFkku }kjk fufeZr twrk dLck fljlkxat ls fey tkus ds i'pkr vfHk;qDr twrk ekdsZV dLck fcUndh ftyk Qrsgiqj esa viuh nwdku ij QqVdj :i esa fcdzh djrk Fkk rFkk vfHk;qDr us dbZ ckj laLFkku ls twrk m/kkj ysus ds i'pkr ok;nk ij Hkqxrku fd;k Fkk ftlds dkj.k ifjoknh dk vfHk;qDr ij fo'okl gks x;k Fkk blh dze esa vfHk;qDr us ifjoknh ds laLFkku ls fnukad 6-5-02 dks eqofyx 61330&0 :i;k fcy la0 2297 ds tfj;s fufeZr twrk m|ksx fy;k rFkk dqy m/kkj dk fcy eqcfyx 61][email protected]& :i;k dh vnk;xh fnukad 30-5-02 rd djus dk opu fn;kA

3- ;g fd vfHk;qDr us tc fuf'pr r; 'kqnk fnukad 30-5-02 rd mijksDr cdk;k /kujkf'k dk Hkqxrku ugha fd;k rks ifjoknh o laLFkku ukfer O;fDr @ xokgku dbZ ckj vfHk;qDr ls mDr cdk;k /kujkf'k cdk;k djus gsrq fcUndh x;s fdUrq reke ryc djus ds ckotwn Hkh vfHk;qDr us ifjoknh dks dqN Hkh vnk ugha fd;k rks ifjoknh us laLFkku ds v/;{k dh gSfl;r ls fnukad 21-8-2002 dks ,d jftLVMZ ukafVl ckor vnk;xh mijksDr /kujkf'k vius vf/koDrk Jh /kesUnz dqekj nwcs ds ek/;e ls vfHk;qDr dks mlds irk ij fHktok;k rks vfHk;qDr us uksfVl izkIr djus ds mijkUr Hkh cedk;k /kujkf'k vnk djus dk u rks dksbZ iz;kl fd;k vkSj u uksfVl dk dksbZ larks"ktud mRrj gh fn;kA

4- ;g fd vfHk;qDr }kjk uksfVl izkIr djus ds ckotwn dksbZ larks"ktud mRrj u nsus vkSj u cdk;k /kujkf'k vnk djus ls ifjoknh dks ;g iw.kZ fo'okl gks x;k gS fd vfHk;qDr ifjoknh dh jde dks gMiuk pkgrk gSA vkSj mldh fu;r [kjkc gks x;h gSA vkSj vekur esa [k;kur djuk pkgrk gSA

5- ;g fd vfHk;qDr }kjk ;g vijkf/kd d`R; Hkk0n0fo0 dh /kkjk 506 dh gn dks igqaprk gSA tks n.Muh; gSA**

"1. That the complainant is President of Bharat Sewa Sansthan, Ambedkar Nagar, Sirsaganj and the said Sansthan situated at Ambedkar Nagar, Town and PS Sirsaganj, District Firozabad is a recognized institute financially aided by the Uttar Pradesh Khadi Gramodyog Board and carried on the business of shoe manufacturing and sales.

2. That the accused was in shoe business with the institute of the complainant; and he, after obtaining shoes manufactured by the institute from Town Sirsaganj, would sell them in retail at his shop situated at Shoe Market, Town Bindki, District Fatehpur and he after obtaining shoes from the institute several times on credit made payment as promised; on account of which the complainant started believing him. In this very continuation, the accused on 06.05.2002 vide Bill No. 2297 obtained on credit from the complainant's institute shoes manufactured by it amounting to Rs. 61,330/- and promised to clear the said credit bill amounting to Rs. 61,330/- by 30.05.2002.

3. That when the accused defaulted in payment of the aforesaid outstanding amount till the agreed date i.e. 30.05.2002, the complainant and institute's nominated persons/witnesses visited the accused at Bindki several times for payment of the said outstanding amount and when despite all demands, the accused did not pay anything to the complainant, he, in the capacity of institute's president, sent a registered notice, for payment of aforesaid amount, to the accused at his address through advocate Dharmendra Kumar Dubey. Even after receipt of notice by the accused, he neither made any effort to clear the outstanding amount nor even gave any satisfactory reply to the notice.

4. That on account of neither giving any satisfactory reply nor making any payment even after receipt of notice by the accused, the complainant has every reason to believe that the accused wants to grab his money and has developed ulterior motives, intending to cause breach of trust.

5. That this criminal act of the accused comes within the ambit of Section 506 of IPC, which is a punishable offence."

(English translation by the Court)

5. Ex facie, I find it difficult to hold that aforesaid allegations satisfy ingredients of Section 405 IPC so as to justify summoning of petitioner under Section 406 IPC.

6. Section 406 IPC provides punishment for "criminal breach of trust" which may be imprisonment for a term upto three years with fine or with both. The term "criminal breach of trust" is defined in Section 405 IPC, which reads 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, 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."

7. The necessary ingredients to attract offence of "criminal breach of trust", are:

(A) entrustment to any person with property or with any dominion over property;

(B) the person entrusted:

(i) dishonestly misappropriated or converts to his own use of that property;

(ii) dishonestly used or disposed of that property or wilfully suffers any person so to do in violation--

(a) of any direction of law prescribing the mode to which such trust is to be discharged;

(b) of any legal contract made touching the discharge of such trust.

8. In the present case entrustment by complainant was that of shoes made by it with trust that same would be sold by accused in retail in a shop. Therefore, property, if sold by accused, it is in accordance with directions and confidence reposed by complainant. The grievance is that price of shoes, supplied by complainant to accused has not been paid within the time promised. It is not that act of selling of shoes was dishonest; or there was a dishonest use; or dishonest disposal of that property; or disposal of property in violation of any direction of law prescribing mode in which trust is to be discharged; or of any legal contract. The entire allegations contained in complaint, if taken together, would only mean that repayment was assured by 30.05.2002 but not paid. Hence, at the best it is a mere "breach of promise" which is not synonymous to "criminal breach of trust".

9. In a similar case, a Sarpanch had applied to Block Development Officer for supply of seeds on credit by specifically stating in application that supply would not benefit him alone but other persons in locality. The direction had been given to pay back amount within a week on supply of seeds but he failed to pay amount within stipulated time. Orissa High Court in Bhikari Charan Mohapatra Vs. State of Orissa, 1982 Cr.L.J. NOC 174 held that it amounts to breach of trust and not criminal breach of trust.

10. Criminal breach of trust, therefore, would require complainant to show, (a) that accused was entrusted with property or with dominion over it; and, (b) that he misappropriated it or converted it to his own use or used it or disposed it. Mens rea is an essential element.

11. Normally this Court does not exercise jurisdiction under Article 226 for quashing complaint or first information report but in certain circumstances it would be justified to do so. In this regard I may to a decision in R. Kalyani Vs. Janak C. Mehta and others, 2009(1) SCC 516, wherein Court has explained, when it would be justified for High Court to interfere in criminal proceedings and Court has said:

"Propositions of law which emerge from the said decisions are:

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."

12. This decision has been followed in Kamlesh Kumari and Ors. vs. State of U.P. and Ors., 2015(6) SCALE 77. This has also been followed recently by a Division Bench of this Court, (in which I was a member) in Sh. Suneel Galgotia and another Vs. State of U.P. and others, 2016(92) ACC 40.

13. Following above authorities and exposition of law, and discussion as also after examination of complaint, I have no manner of doubt that complaint in question does not satisfy ingredients of Section 405 IPC, hence no offence punishable under Section 406 IPC can be said to have been committed. In such circumstances, order passed by Court below summoning petitioner is clearly illegal, without jurisdiction and amounts to misuse of process of law.

14. In view thereof, writ petition is allowed. Impugned orders dated 21.02.2003 and 21.06.2004 as also the complaint made by respondents are hereby quashed.

15. There shall be no order as to costs.

Order Date :- 06.05.2016

AK