Allahabad High Court

Amit Kumar Dubey And Another vs State Of U.P. And Another on 29 April, 2025

Author: Manju Rani Chauhan

Bench: Manju Rani Chauhan





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


AFR
 
Neutral Citation No. - 2025:AHC:66777
 

 
Court No. - 52
 
Case :- APPLICATION U/S 482 No. - 3922 of 2025
 
Applicant :- Amit Kumar Dubey And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amarnath Tripathi
 
Counsel for Opposite Party :- Mahesh Dwivedi,G.A.,Saroj Kumar Yadav
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Sri Amarnath Tripathi, learned counsel for the applicants, Sri Amit Singh Chauhan, learned A.G.A.-I for the State and Sri Mahesh Dwivedi, learned counsel for O.P. No. 2.

2. The applicants have preferred instant application under Section 482 Cr.P.C. challenging order dated 18.09.2024 passed by Additional District and Sessions Judge, Court No. 14, Varanasi in Criminal Revision No. 105 of 20221, order dated 07.01.2022 passed by Special Chief Judicial Magistrate, Varanasi in Criminal Case No. 831 of 20192, arising out of Case Crime No. 138 of 2019, under Sections 406, 504, 506 IPC, Police Station - Rohaniya, District - Varanasi, whereby applicants' discharge application dated 04.09.2021 has been rejected.

3. Brief facts of the case are that the informant earns for his livelihood by taking contracts of constructions work. The applicant no. 1 - Amit Kumar asked the informant for construction of his house and the tasks to be carried out during the construction were noted in a quotation prepared for the said purpose, whereupon the applicant no. 1 and Engineer K.K. Singh put their signatures on 26.04.2015. After the preparation of the quotation, the informant had started construction work of the applicant's house on 27.04.2015 and the informant got the construction work of the applicant's house completed and for the said construction, the total labour charges incurred were Rs. 10,19,000/-, out of which Rs. 4,44,000/- were paid during the construction work being done and the balance amount of Rs. 5,75,000/- was to be paid by the applicants. On being asked for the remaining payment, the applicant no. 1 assured the informant to pay it soon. Even after lapse of two years, the applicants have not made payment of informant's remaining amount and whenever the informant visited the applicants' house for payment, wife of applicant no. 1 Sudha Pandey used unwelcoming language stating that no money would be paid to the informant, and, if he will come to ask for money, she will send the informant and his son behind the bars implicating them in a false case of eve-teasing. On 15.12.2018, when the informant again, for the purpose of requesting for payment, went to applicants' house at around 07:00 p.m., the applicant no. 1 lashed out on the informant and hurled filthy abuses and the applicant no. 2 threatened him to kill, warning him that in case the informant comes again to demand money, he would be killed. Fearing of the same, the informant came back to his home. He moved application of the incident to the Chowki Incharge, Mataldei, P.S. Rohaniya, Varanasi on 16.12.2018 and before the Station House Officer, P.S. Rohaniya, Varanasi on 02.01.2019 and also before the Senior Superintendent of Police, Varanasi on 11.01.2019, thereafter in Sampoorn Samadhan Diwas, Rajatalab, Varanasi on 16.01.2019 and before the District Magistrate, Varanasi and Senior Superintendent of Police, Varanasi on 08.02.2019, however, the said applications failed to elicit any action. Therefore, the informant has prayed for lodging an FIR against the applicants for grabbing amount of Rs. 5,75,000/-, use of abusive language and intimidation to kill him. Thereafter, the FIR was instituted.

4. Learned counsel for the applicants submits that the present case has been lodged with false and frivolous allegations due to ulterior motive. The applicants have never committed any offence of criminal breach of trust and have never hurt or assaulted any person. Vague, false and bogus allegations have been levelled against the applicants. The allegation made against the applicants that they have not paid the wages of O.P. No. 2 is incorrect. The real fact is that the applicants have been duped and cheated by O.P. No. 2 as he did not complete the work assigned to him. Advance payment was also made by the applicants to O.P. No. 2 and the work so given to him was not completed and the money in advance has been received by O.P. No. 2.

5. The applicants have arrived at the plot to see the progress of the construction work which was still incomplete and found that the O.P. No. 2 had stopped the construction work requesting for more payment. The applicants were not present at the place of alleged incident. The applicant no. 1 was attending an examination in Allahabad about 130 km. away from his residence. The FIR has been lodged after more than 3 months of the alleged date of occurrence without giving any plausible explanation for the same.

6. The present case has been lodged to extract money from the applicants and also for the reason that the advance payment had already been made to the O.P. No. 2 and the construction work was not completed by him, therefore, to save his skin from returning money, the present case has been instituted. It is a case of malicious prosecution. No offence under Section 406 IPC is made out as there was no entrustment of property in any manner, which says that it is necessary that the accused should receive the property and hold it on behalf of another person so that he should be called as a trustee of the said property.

7. In support of his submissions, learned counsel for the applicants has relied upon the judgements of the Apex Court in the cases of Ishwar Pratap Singh & Ors. v. State of Uttar Pradesh & Anr.3, Hitesh Verma v. State of Uttarakhand and Anr.4, Mohammad Wajid and Anr. v. State of U.P. and Ors.5, Mahmood Ali and Ors. v. State of U.P. and Ors.6, Salib @ Shalu @ Salim v. State of U.P. & Ors.7, Delhi Race Club (1940) Ltd. & Ors. v. State of Uttar Pradesh & Anr.8, and Sharif Ahmed and Anr. v. State of Uttar Pradesh and Anr.9

8. Learned counsel for the applicants has relied upon following paragraph of judgements in Ishwar Pratap Singh (supra):

9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse. There is no requirement that the charge-sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed.

9. Relying upon paragraph-23 of the judgement in Hitesh Verma (supra), learned counsel for the applicants submits that this Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. Paragraph-23 of the said judgement reads thus:

"23. This Court in a judgment reported as Ishwar Pratap Singh v. State of Uttar Pradesh and Anr.10 held that there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed under Section 482 of the Code, the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under:

"9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse. There is no requirement that the charge-sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed."

10. It has further been contended by learned counsel for the applicants that it is settled by the Supreme Court in Mohammad Wajid (supra) that it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. Relevant observation in the said case is being reproduced below:

"30. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."

11. Emphasizing upon the observation made in Mahmood Ali (supra), and Salib @ Shalu @ Salim (supra), learned counsel for the applicants contends that Supreme Court has held that in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. Relevant paragraph is being quoted thus:

"12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance etc. then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."

12. Learned counsel for the applicants has further relied upon paragraph nos. 33, 34, 35 & 36 of the judgement in Delhi Race Club (supra), wherein the Apex Court has held that for an offence under Section 406 IPC, the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them and that the property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused of that the beneficial interest in or ownership thereof must be in the other person and the offender must hold such property in trust for such other person or for his benefit, and also there can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. Said paragraphs are being mentioned below:

33. It has been held in State of Gujarat v. Jaswantlal Nathalal11:

"8. The term "entrusted" found in Section 405IPC 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 Raghavji Patel v. State of Maharashtra12. 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 trust -- see Jaswantrai Manilal Akhaney v. State of Bombay13. The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property 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"."

34. Similarly, in CBI v. Duncans Agro Industries Ltd.14 this Court held that the expression "entrusted with property" used in Section 405 IPC connotes that the property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or that the beneficial interest in or ownership thereof must be in the other person and the offender must hold such property in trust for such other person or for his benefit. The relevant observations read as under:

"27. In the instant case, a serious dispute has been raised by the learned counsel appearing for the respective parties as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression "entrusted with property" or "with any dominion over property" has been used in a wide sense in Section 405IPC. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. The expression "entrusted" appearing in Section 405IPC is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression "trust" in Section 405IPC is a comprehensive expression and has been used to denote various kinds of relationships like the relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. When some goods are hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in the other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee."

(emphasis supplied)

35. The aforesaid exposition of law makes it clear that there should be some entrustment of property to the accused wherein the ownership is not transferred to the accused. In case of sale of movable property, although the payment may be deferred yet the property in the goods passes on delivery as per Sections 20 and 24, respectively, of the Sale of Goods Act, 1930.

"20. Specific goods in a deliverable state.--Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment of the price or the time of delivery of goods, or both, is postponed.

*** *** ***

24. Goods sent on approval or "on sale or return".-- When goods are delivered to the buyer on approval or "on sale or return" or other similar terms, the property therein passes to the buyer--

(a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction;

(b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time."

36. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it.15"

13. Learned counsel for the applicants has relied upon the following paragraph nos. 35 and 36 in the case of Sharif Ahmed (supra):

35. A reading thereof would indicate that it refers to the complaint made by Respondent No. 2 - Iqbal on 23.05.2016 relating to the deal of a plot in respect of which part consideration was paid as earnest money. But thereafter, the appellants had sold the plot and were not refunding the earnest money and by doing so have committed breach of trust under Section 406 of the IPC. It also refers to the alleged pretexts being made by the appellants on money being demanded and a threat to kill being extended. It is also recorded that an offence under Section 506 has been proved to have been committed. At the same time, the chargesheet states that no offence under Section 420 of the IPC is found to have been committed.

36. An offence under Section 406 of the IPC requires entrustment, which carries the implication that a person handing over any property or on whose behalf the property is handed over, continues to be the owner of the said property. Further, the person handing over the property must have confidence in the person taking the property to create a fiduciary relationship between them. A normal transaction of sale or exchange of money/consideration does not amount to entrustment. Clearly, the charge/offence of Section 406 IPC is not even remotely made out.

14. Learned counsel for the O.P. No. 2 submits that once the charges have been framed, this Court sitting in the present jurisdiction cannot interfere and conduct trial at this stage. In support of his submission he has relied upon a judgement of the Supreme Court in the case of Ratilal Bhaji Mithani v. State of Maharashtra and others, 1978 0 Supreme (SC) 293 : (1979) 2 SCC 179. He has emphasised upon the following paragraphs of said case:

"26-A. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973).

26-B. Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be based upon a "finding of not guilty" turning on the merits of the case and the appreciation of evidence at the conclusion of the trial."

*** *** ***

32. Equally meritless, albeit ingenious, is the argument that since the Magistrate had no legal power to delete the charges, the order of "discharge" must be construed as an order of "acquittal" so that the High Court could not interfere with it in revision and direct a retrial. Assuming arguendo, the Magistrate's order of discharge was an order of "acquittal", then also, it does not alter the fact that this "acquittal" was manifestly illegal. It was not passed on merits, but without any trial, with consequent failure of justice. The High Court has undoubtedly the power to interfere with such a patently illegal order of acquittal in the exercise of its revisional jurisdiction under Section 439, and direct a retrial. The High Court's order under appeal, directing the Magistrate to take de novo proceedings against the accused was not barred by the provisions of Section 403 (of the Code of 1898), the earlier proceedings taken by the Magistrate being no trial at all and the order passed therein being neither a valid "discharge" of the accused, nor their acquittal as contemplated by Section 403(1). The Magistrate's order (to use the words of Mudholkar, J., in Mohd. Safi v. State of W.B. AIR 1966 SC 69) was merely "an order putting a stop to these proceedings" since the proceedings, ended with that order. The other contentions of the appellant, have been stated only to be rejected."

15. Learned A.G.A. contends that the O.P. No. 2 was engaged to carry out construction work as per terms of the agreement and in accordance with the agreement he completed the construction work and subsequently demanded payment for the work rendered. While part payment was made, the applicants, in an apparent attempt to evade full payment, resorted to acts of humiliation and physical assault against O.P. No. 2. Such actions of the applicants attract the offence under Section 406 IPC, which clearly constitute an offence under Section 406 IPC, which defines that whoever commits criminal breach of trust shall be punished with imprisonment of up to three years, or with a fine, or with both.

16. Learned counsel for the State further contends that the essential ingredients for the constitution of an offence under Section 406 IPC, require four essential elements to be established as enshrined under Section 405 IPC, which could be described as (i) entrustment of property; (ii) ownership; (iii) dishonest misappropriation or conversion and (iv) breach of legal duty or contract, and the circumstances of the present case prove that there has been criminal breach of trust on the part of applicants which emanated proceedings of the present case.

17. It is a settled proposition of law that all the grounds as taken in the discharge application can be examined at any/appropriate stage of trial and this Court, while exercising its inherent powers cannot conduct mini trial. Reliance has been placed on the judgements of this Court in the case of Dinesh Kumar Agarwal v. State of U.P. and another, 2024:AHC:152701, decided on 18.09.2024, and in the case of Vaibhav Jain v. State of U.P. and another, Application U/s 482 No. 35886 of 2024, 2024:AHC:199278, decided on 19.12.2024.

18. The Apex Court in the case of Radheshyam v. State of Rajasthan16, has culled out ingredients of Section 406 IPC to constitute the criminal breach of trust. Relevant paragraph of the said judgement reads thus:

11. For an offence punishable under Section 406, IPC, the following ingredients must exist:

i. The accused was entrusted with property, or entrusted with dominion over property;

ii. The accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and

iii. Such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

19. Discussing the expression "entrustment" Apex Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada17, has observed that it carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Relevant excerpt of paragraph-13 of the said judgement is being quoted herein-below:

"13. ...The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit."

20. Having considered the submissions advanced by learned counsel for the parties, perusal of the record and in view of the settled position of law, referred to in the preceding paragraphs, I do not find any force to entertain the applicants' grievance being sought for by means of present application.

21. The present application stands rejected.

Order Date :- 29.04.2025

Justice Manju Rani Chauhan