Allahabad High Court
Sachin Garg vs State Of U.P. And Another on 23 March, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- APPLICATION U/S 482 No. - 18603 of 2021
Applicant :- Sachin Garg
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sushil Shukla,Aditya Prakash Singh
Counsel for Opposite Party :- G.A.,Gaurang Dwivedi,Krishna Kumar Shukla,Vidya Prakash Singh
Hon'ble Shekhar Kumar Yadav,J.
Heard Sri Sushil Shukla, learned counsel for the applicant, Sri Mahesh Chandra Chaturvedi, learned Senior Counsel assisted by Sri Vidya Prakash Singh for the opposite party no.2 and learned A.G.A. for the State as well as perused the record.
The present application under Section 482 Cr.P.C. has been filed to quash the impugned summoning order dated 18.8.2021 in Criminal Complaint Case No. 7990 of 2020 (Saurabh Sharma Vs. Sachin Garg), under Sections 406, 504, 506 IPC, P.S. Sahibabad, District- Ghaziabad, pending in the court of Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad with a further prayer to stay the proceedings of the aforesaid case.
Learned counsel for the applicant submitted that there is a commercial transaction of Rs.9/- lacs between the applicant and opposite party No. 2, which has given rise to accounting dispute between them and some amount has been paid to the opposite party no.2 and as such, no offence is made out against the applicant under Section 406 I.P.C.. In support of his submission, learned counsel for the applicant has relied upon the paragraph no. 18 of the judgment of the Apex Court in the case of Binod Kumar and others Vs. State of Bihar and another reported in (2014) 10 SCC 663, which reads as under:-
"18. In the present case, looking at the allegations in the complaint on the face of it, we find 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 utilized 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."
He further relied upon the paragraph no. 8 of the judgment of the Apex Court in the case of State of Gujrat Vs. Jaswantlal Nathalal reported in (1968) 2 SCR 408, which reads as under:-
"The term "entrusted" found in Section 405 IPC governs not only the words "with the property" immediately following it but also the words "or with any dominion over the property" occurring thereafter-see Velji Raghvaji Patel Vs. State of Maharashtra [1965] 2 S.C.R. 429. Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trustsee Jaswantrai Manilal Akhaney V. State of Bombay. The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that properly is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. It is true that the government had sold the cement in question to BSS solely for the purpose of being used in connection with the construction work referred to earlier. But that circumstance does not make the transaction in question anything other than a sale. After delivery of the cement, the government had neither any right nor dominion over it. If the purchaser or his representative had failed to comply with the requirements of any law relating to cement control, he should have been prosecuted for the same. But we are unable to hold that there was any breach of trust."
On the other hand, Sri Mahesh Chandra Chaturvedi, learned Senior Counsel submitted that an application has been moved under Section 156(3) Cr.P.C. before the court concerned and the same was treated as a complaint case and after recording statement of complainant and his sole witness under Section 200 and 202 Cr.P.C., the court below passed the summoning order against the applicant to face trial under Sections 406, 504, 506 IPC. which is just and proper and there is no illegality in the impugned order.
The prayer for quashing the proceedings of case as well as summoning order is refused.
From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge and they are free to take all the submissions in the said discharge application before the trial court.
The impugned order does not suffer from any illegality or infirmity nor is there any abuse of the courts' process. Hence, no interference is called for by this Court in the present case. The application has no force and the same is hereby dismissed.
Order Date :- 23.3.2023
Krishna*
