Shivani Sharma And 3 Others vs State Of U.P. And Another
2022 Latest Caselaw 14257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 25747 of 2022
 

 
Applicant :- Shivani Sharma And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Nitinjay Pandey
 
Counsel for Opposite Party :- G.A.,Pankaj Kushwaha
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. "What is criminal breach of trust" is the issue involve in this application.

2. The allegation against applicants are that Applicant-1, wife of Opposite Party No. 2, has taken not only her jewellery which was gifted by her parents but also the jewellery gifted to her by in-laws. She has taken even the clothes of her husband alongwith her. In these circumstances, criminal complaint was filed by Opposite Party No. 2 and on the basis of statements recorded under Sections 200 and 202 Cr.P.C. impugned summoning order dated 15.09.2021 was issued.

3. Heard Sri Nitinjay Pandey, learned counsel for applicants, learned AGA for State and Sri Pankaj Kushwaha, Advocate for Opposite Party No. 2, at length.

4. Essential ingredients of the offence of criminal breach of trust are:

(1) The accused must be entrusted with the property or with dominion over it,

(2) The person so entrusted must use that property, or;

(3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation,

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

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

5. The pivotal to constitute an offence under Section 405 IPC is "entrustment or property" or "dominion over it". There is not even a single averment in complaint as well as in the statements recorded under Sections 200 and 202 Cr.P.C. that husband or complainant has entrusted the gifts item to his wife, which has allegedly been taken by her. There is no averment either that applicant has dishonestly used or disposed of that property. It is also not the averment that clothes of complainant have been used by his wife as well as there is no details of jewellery or other items which are alleged to be used or disposed of by applicants.

6. Supreme Court in Vijay Kumar Ghai and others vs. State of West Bengal and others, (2022) 7 SCC 124 has held as under:

28. "Entrustment" of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, ''in any manner entrusted with property'. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of ''trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.

29. The definition in the section does not restrict the property to movables or immoveable alone. This Court in R K Dalmia vs Delhi Administration held that the word ''property' is used in the Code in a much wider sense than the expression ''moveable property'. There is no good reason to restrict the (1963) 1 SCR 253 meaning of the word ''property' to moveable property only when it is used without any qualification in Section 405.

30. In Sudhir Shantilal Mehta Vs. CBI it was observed that the act of criminal breach of trust would, Interalia mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. 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."

7. In view of above and considering that there is no ingredients of the offences under which summons have been issued, the impugned summoning order cannot be sustained.

8. The scope of powers under inherent jurisdiction has been reiterated by Supreme Court in Ramveer Upadhyay & Anr Vs. State of U.P. & Anr, 2022 SCC OnLine SC 484 and relevant paragraphs 27, 38 and 39 are reproduced hereinafter:

"27. Even though, the inherent power of the High Court under Section 482 of the Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C is not to be exercised for the asking."

"38. Ends of justice would be better served if valuable time of the Court is spent on hearing appeals rather than entertaining petitions under Section 482 at an interlocutory stage which might ultimately result in miscarriage of justice as held in Hamida v. Rashid @ Rasheed and Others, (2008) 1 SCC 474.

39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C. 13 (2008) 1 SCC 474 ."

9. Further in Daxaben Vs. State of Gujarat & Ors, 2022 SCC OnLine SC 936, the aforesaid issue has been reiterated and relevant paragraph 49 is extracted hereinafter:

"49. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence."

10. Before parting it is necessary to refer the latest judgment of Supreme Court in Lalankumar Singh and others vs. State of Maharashtra, 2022 SCC OnLine SC 1383 which requires the Court that a summoning order ought to have been passed on certain opinion and reasons. For reference the relevant paragraph of the judgment is reproduced as under:

"38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons...."

11. However, in the present case impugned summoning order does not satisfy the above requirements and I, therefore, find that no case is made out against applicants.

12. In the result, application is allowed. Impugned summoning order dated 15.09.2021 as well as the entire proceedings of Complaint Case No. 336 of 2020 (Raghvendra Kumar Sharma vs. Shivam Sharma and others), under Section 406, 323, 506 IPC, Police Station Kotwali, District Mainpuri, are hereby quashed.

Order Date :- 17.10.2022

AK