Munni Lal Bharti vs State Of U.P. And Another
2023 Latest Caselaw 34237 ALL

Allahabad High Court

Munni Lal Bharti vs State Of U.P. And Another on 8 December, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:234021
 
Court No. - 92
 

 
Case :- APPLICATION U/S 482 No. - 26650 of 2007
 

 
Applicant :- Munni Lal Bharti
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Bijai Prakash Tiwari
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Anish Kumar Gupta,J.
 

1. Heard Sri Bijai Prakash Tiwari, learned counsel of the applicant and Sri Pankaj Srivastava, learned AGA for State is present.

2. The instant application, under Section 482 Cr.P.C., has been filed seeking quashing of the entire proceedings of Case No. 4106 of 2007, State v. Munni Lal Bharti, under Sections 406 and 506 IPC, pending before the Special Chief Judicial Magistrate, Kanpur Nagar.

3. Learned counsel for the applicant submits that even if the allegations made in the FIR is taken on face value, no offence whatsoever is made out against the applicant herein, for which, the cognizance have been taken by the learned Magistrate. Learned counsel for the applicant further submits that with regard to the incident dated 08.06.2006, the applicant has lodged an FIR against the Opposite Party No.2 and others, under Section 392 IPC as counter blast to the FIR lodged by the applicant herein. The Opposite Party No. 2 has lodged the present FIR on 05.08.2007 against the applicant herein on the basis of false and fabricated story of advancement of loan, by which, the Opposite Party No. 2 is taken on face value but prima facie appears that it was a dispute purely of civil nature for recovery of money, for which, the instant criminal case has been lodged, which is not permissible and the said practice has been deprecated by the Apex Court in various judgements.

4. Learned counsel for the applicant has relied upon the judgment of the Apex Court in Mohammed Ibrahim v. State of Bihar, reported in 2009 (8) SCC 751, to substantiate his submission. Learned counsel for the applicant submits that from the allegations in the FIR itself, there was no allegations that any amount was entrusted to the Opposite Party No.2 to the applicant herein, for which, there is any breach of trust on the part of the applicant herein rather the allegation is that an amount of Rs. 75,000/- was given as loan to the applicant and when the applicant failed to pay that amount, the instant FIR has been lodged against the applicant herein.

5. Insofar as the offence under Section 506 IPC is concerned, learned counsel for the applicant submits that there is no allegation of any criminal intimidation against the applicant in the entire FIR, therefore, the offence under Section 506 IPC is also not made out and the entire proceedings against the applicant are concocted, misconceived and if taken on its face value, it is at the most civil dispute for recovery of money.

6. Per contra, learned AGA for the State submits that from the allegations made in the FIR clearly and allegation of entrustment of Rs. 75,000/- is found, which has been misappropriated by the applicant herein and there is clear allegations of threat to the Opposite Party No.2, therefore, the offence under Section 506 IPC is also made out, therefore, he has prayed for dismissal of the instant application.

7. Having heard the learned counsel for the parties, this court had carefully gone through the records of the case and from the records it is apparent that an FIR was lodged by the applicant herein on 17.07.2007 for an incident dated 08.06.2006 for an offence punishable under Section 392 against the Opposite Party No.2 and other accused persons as counter blast to the said FIR lodged by the applicant herein. The Opposite Party No.2 has lodged the present FIR on 05.08.2007 claiming therein that she has advanced an amount of Rs. 75,000/- as loan to the applicant on 15.03.2003, when she demanded the payment of the said amount that the applicant told that he will pay the said amount in instalments and on 3rd May 2007 an amount of Rs. 25000/- was paid by the applicant herein. Again, when the Opposite Party No.2 again asked for repayment and again on 2.4.2007 when the Opposite Party No. 2 demanded for the refund of the said amount, there applicant herein had assaulted the Opposite Party No.2. Again on 18.07.2007, the applicant admitted to repay the amount in the presence of various persons but he did not pay the amount, therefore, he wants to misappropriate the amount advanced by the Opposite Party No.2.

8. From the evidence and allegations as have been narrated above and in the considered opinion of this court for proper appreciation of the instant case, it is the relevant to note the provisions of Sections 405, 406 and 503 and 506 IPC :-

"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". 1[Explanation 2[1].?A person, being an employer 3[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.] 4[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.]

Section 406 in The Indian Penal Code: 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.

Section 503 in The Indian Penal Code: Criminal intimidation.?Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.?A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.

Section 506 in The Indian Penal Code : Punishment for criminal intimidation.?Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.?And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.''

9. It is clear that for the offence punishable under Section 406, there must be an entrustment of property and there must of dishonest misappropriation. In the instant case, the amount of Rs. 75,000/-, which has been claimed to have been given to the applicant as loan not with intention to create any entrustment, therefore, there was no question of misappropriation of the said amount by the applicant herein.

10 So far as the offence of the criminal intimidation is concerned, though there are allegations of threat given by the applicant to the Opposite Party No.2 but those threats are not with intent to compel the Opposite Party No.2 to do an act, which she is not legally bound to do or to restrain her to do any act, which she is legally entitled to do therefore, in the considered opinion of this court, the offence under Section 506 IPC is also not made out against the applicant.

11. In view of the aforesaid observations and allegations made in instant FIR, it is apparent that there was a dispute with regard to the recovery of money, which is purely of civil dispute between the parties, for which, a criminal case has been registered by the Opposite Party No.2 and this practice has been deprecated by the Apex Court in the judgement of Mohammed Ibrahim v. State of Bihar (Supra), wherein, the Court has observed as under :-

"This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes."

12. In view of the aforesaid observations, it is apparent that the Opposite Party No.2 has tried to raise civil dispute by converting it to as a criminal case, therefore, the instant application is allowed and the entire proceedings of Case No. 4106 of 2007, State v. Munni Lal Bharti, under Sections 406 and 506 IPC, pending before the Special Chief Judicial Magistrate, Kanpur Nagar are hereby quashed.

Order Date :- 8.12.2023

Akram