Santosh S/O Adinath Ghalage And ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 5950 Bom

                                        (1)                              cria478.17

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO. 478 OF 2017

1.    Santosh s/o. Adinath Ghalage                        ..       Applicants
      Age. 40 years, Occ. Service,
      R/o. Plot No.22, Chhaya Nagar
      Housing Society, CIDCO N-9,
      Aurangabad.

2.    Vidya w/o. Santosh Ghalage
      @ d/o. Sandu Gawali
      Age. 34 years, Occ. Head Mistress,
      R/o. Plot No.22, Chhaya Nagar
      Housing society, CIDCO N-9,
      Aurangabad.

                                      Versus

1.    The State of Maharashtra                            ..       Respondents

2.    Bharat s/o. Laxman Kshirsagar
      Age. 42 years, Occ. Business,
      R/o. N-11, CIDCO, Aurangabad.


Mr.Rupesh A. Jaiswal h/f. Mr. N.S. Ghanekar, Advocate for 
the applicants.
Mr.S.B. Pulkundwar, A.P.P. for respondent No.1/State.
Mr.G.K. Kshirsagar, Advocate for respondent No.2.


                                           CORAM :        S.S.SHINDE &
                                                          S.M.GAVHANE,JJ.

                                      RESERVED ON :       28.07.2017
                                    PRONOUNCED ON :       16.08.2017





                                      (2)                               cria478.17

J U D G M E N T [PER : S.M. GAVHANE, J.] :-

1. The applicants, who are accused Nos.1 and 2 in

Crime No.14 of 2017, registered with Ajintha Police

Station, Aurangabad for the offence punishable under

section 406 read with section 34 of the Indian Penal Code

[for short "the IPC"], have filed this application under

section 482 of the Code of Criminal Procedure, to quash

and set aside the said crime.

2. The facts giving rise to this application are

that the applicant No.1 is one of the members out of

seven members of an institution, namely, Ajintha Learning

Hub English School and applicant No.2 is the President

and Head Mistress of the said institution. The informant

- Bharat Laxman Kshirsagar (respondent No.2) is in

transportation business and provides service of buses.

In his report, on the basis of which aforesaid crime has

been registered, it is alleged that there was oral

agreement between him and the applicants in respect of

providing bus services for the students of Ajintha

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Learning Hub English School from the academic year 2013-

2015. It is alleged that respondent No.2 has provided

two buses bearing registration No.MH-20-W-9181 and MH-21-

9986. But even after providing transportation service for

the said academic years, the applicants did not pay

Rs.12,10,000/- as remuneration (rent) towards the

services.

3. According to the applicants, the school had

their own bus - Tata Magic having registration No.MH-20-

CT-7995 and Yogesh Jadhav was its driver. Respondent

No.2 had provided his bus bearing No. MH-20-W-9181 only

for short period from June, 2013 to February, 2014.

Since the said bus was not in working condition,

respondent No.2 took it back. The bus No.MH-21-9986 was

never provided for transportation service to the

applicants' school. The story of the respondent No.2 of

not receiving any amount from the school for his services

of bus and that said bus continued for a period of two

years is improbable. At no point of time, respondent No.2

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issued any notice to the applicants to pay his bill. In-

fact, for that year one SAB-Miller India, Waluj,

Aurangabad provided transportation service and there was

absolutely no question of providing bus services to the

applicants' school. The dispute appears to be purely of

civil nature.

4. Respondent No.2 has filed an affidavit-in-reply

and in the affidavit it is stated that prima facie there

is involvement of the applicants in committing offence

under section 406 read with section 34 of the IPC. The

crime registered against the applicants is under

investigation. Therefore, at this stage, it is not

possible to decide the case on merits. The applicants

made oral agreement with respondent No.2. As per said

agreement the applicants had hired two buses owned by the

respondent No.2. Yogesh Jadhav and Gajanan Jadhav are

the drivers on the said buses. The oral agreement was

before witness - Damu Digambar Rothe. This respondent

had requested the applicants to have written agreement,

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but they deliberately avoided to make written agreement.

This conduct of the applicants shows their mala fide

intention and it amounts to criminal breach of trust. He

stated that the application be rejected with costs.

5. We have heard learned Counsel appearing for the

applicants, learned APP appearing for respondent

No.1/State and learned Counsel appearing for respondent

No.2. Learned Counsel appearing for the applicants

submits that the allegations in the FIR do not disclose

ingredients of offence punishable under section 406 of

the IPC. The dispute between the applicants and

respondent No.2 is of civil nature. Therefore, when the

offence under section 406 of the IPC does not attract, on

the basis of material collected by the Investigating

Officer during investigation of crime registered against

the applicants, the said crime is required to be quashed

and set aside.

6. On the other hand, learned Counsel appearing for

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the informant (respondent No.2) made submissions in the

light of contentions in the affidavit-in-reply of the

said respondent. He submits that merely because the

dispute is of civil nature, is no ground to quash the

crime registered against the applicants and though civil

remedy is available, criminal Court cannot be prevented

from taking cognizance of offence under section 406 of

the IPC. In support of his submissions, learned Counsel

appearing for respondent No.2 has relied upon the ratio

laid down by this Court in the case of Madhosingh and

others Vs. Smt. Kamla Devi and others, 1992 Cri.L.J.1858,

wherein in para 8, it is observed as under:-

"8. The object of the criminal law is to protect the innocent and punish the guilty. It is not the function of the criminal Court to do anything with the dispute relating to the property. It is the function of the civil courts to decide the disputes relating to the property. Where the dispute is of civil nature, a Magistrate ought not to deal with it. But, there is nothing in the law to prevent the criminal Court from taking cognizance of the offence provided the ingredients of the offence are made out on the face of the complaint. Merely because the person concerned is subject to civil liability, the criminal complaint is not to be dismissed even if the civil remedy is

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tenable. In a case of Jaswantrao V. State of Bombay, AIR 1956 SC 575 : Their Lordships observed that "The same set of facts may give rise both to civil liability and a criminal prosecution."

7. Learned APP appearing for the State supported

the arguments advanced on behalf of respondent No.2.

8. We have carefully considered the submissions

made on behalf of the parties and perused the affidavit-

in-reply filed by respondent No.2 and the annexures to

the petition including the FIR and statements of the

witnesses. The FIR shows that respondent No.2-informant

is doing transport business since last 15 years. He is

having the vehicles for transporting the workers in the

companies. At the time of lodging FIR, four vehicles

were engaged by Pals Company and Fosters SAB-Miller Beer

Company in MIDC, Aurnagabad for transporting the workers.

In the year 2013, applicant No.1 started Ajintha Learning

Hub English School, at Ajintha. He is president of the

said school. His wife - applicant No.2 is Head Mistress

of the said school. For the academic years 2013-2015,

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he had given two vehicles i.e MH-20-W-9181 (Swaraj Mazda)

and MH-21-9986 Bajaj Tempo Travellers 4S on hire for to-

and-fro journey of the students in the villages in the

limits of Ajintha. One Gajanan Maruti Jadhav, Yogesh

Maruti Jadhav and Banwarilal Mahut were drivers of the

said vehicles. The FIR further shows that in the year

2013-14 both the vehicles were engaged by Ajintha

Learning Hub School and total rent of the said vehicles

for the said year was Rs.7,70,000/-. In the year 2015,

there was mechanical defect in one of the vehicles. It

is alleged that total rent of the vehicles of the above

said two years due to be paid to the informant was

Rs.12,10,000/-, but no single rupee has been paid by the

applicants to the respondent No.2, despite demand of the

said rent by him and as such they have committed breach

of trust. The FIR further depicts that respondent No.2

requested for legal action against the applicants to pay

him above said amount of rent of the buses.

9. Here it is necessary to know meaning of criminal

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breach of trust, given under section 405 of the IPC and

it is reproduced thus :-

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 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".

10. Thus it is clear from the above provision that

to attract the offence of criminal breach of trust,

punishable under section 406 of the IPC, following

ingredients are required to be proved;

(1) entrusting any person with property or with any dominion over property, (2) that person entrusted

(a) dishonestly misappropriating or converting to his own use that property; or

(b) Dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation

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

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

11. In the present case as referred earlier, the FIR

discloses that there was oral agreement between the

applicants and respondent No.2. By the said agreement,

applicant hired two buses of respondent No.2 for

transporting the students from their village in the

limits of Ajintha to their school for the period from

2013-2015 on rent and total amount of Rs.12,10,000/-

towards rent was due to respondent No.2 and payable by

the applicants and the applicants have not paid single

rupee out of the said rent amount to respondent No.2.

These allegations show that the applicants have committed

breach of contract between them and respondent No.2.

However, the above said allegations do not, prima facie,

suggest that the respondent No.2 had entrusted the

property i.e. his two buses to the applicants within the

meaning of section 405 and 406 of the IPC. Similarly,

the said allegations do not suggest that the applicants

have dishonestly misappropriated or converted the said

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property/vehicles to their own use or dishonestly used

the said vehicles or disposed the said vehicles in

violation of any direction of law prescribing the law in

which such trust is to be discharged.

12. It is not the case of respondent No.2 that the

applicants have sub-let his vehicles or transferred the

same to anybody else so as to say that they have

dishonestly used the said vehicles or disposed the said

vehicles in violation of any direction of law prescribing

the law in which such trust is to be discharged. Thus,

the elements of dishonest intention which is necessary to

constitute the offence of criminal breach of trust is

prima facie not attracted on the basis of allegations in

the FIR and statements of witnesses. Therefore, prima

facie ingredients of offence punishable under section 406

of the IPC are not disclosed on the basis of FIR and

material collected during the investigation. Therefore,

the FIR against the applicants for the said offence is

not sustainable and the same is liable to be quashed.

( 12 ) cria478.17

13. It appears from the allegations in the FIR and

the statements of witnesses that there was breach of

contract, which gives rise to Civil remedy to respondent

No.2 for recovery of rent as well as damages. But

instead, having recourse to Civil remedy, the respondent

No.2 is trying to recover the rent of vehicles due from

the applicants by filing prosecution against the

applicant, which is not permissible.

14. As referred earlier in support of his submission

that the Criminal Court is not prevented from taking

congnizance of offence punishable under section 406 of

the IPC against the applicant though civil remedy is

available to the respondent No.2, learned Counsel

appearing for respondent No.2 has relied upon ratio laid

down in the case of Madhosingh & Ors. (Supra). The facts

of the said case are that in the year 1976, a society

acquired a piece of land and prepared layout. The

complainant's husband was alloted plot in the above said

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society admeasuring 60 x 60 sq.mtr. bearing plot No.13 in

the lay out of the society vide letter dated 10.08.1976.

According to the husband of the complainant, as said plot

was not lucky number, he made request to the society for

change of number and accordingly his request was

considered and the said plot was re-numbered as plot

No.12 and original plot number 12 was renumbered as plot

No.13. The value of the plot was fixed at Rs.12,200/-.

The husband of the complainant paid Rs.13,627=20. The

complainant made allegation of foul play on the part of

the accused. The complainant made a request to accused

No.1, after death of her husband to execute the sale deed

of plot No.12. When the accused No.1 failed to execute

sale deed on one pretext or another, the complainant

issued notice on 05.10.1988 to execute sale deed, but

accused No.1 did not take any action. Again in the month

of April, 1989, the complainant approached the accused

No.1 for execution of sale deed. Accused No.1 handed over

particulars of sale-deed, but the area of said plot has

been shown as 1800 sq.ft. i.e. 18.28 x 9 sq.mtrs. in

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place of 3600 sq.ft. And the value of the said plot was

also shown as Rs.6200/- only, though complainant had paid

Rs.13,627.50. The complainant was compelled to issue

notice to the accused to execute sale-deed of plot No.12

admesuring 3600 sq.ft. The accused replied the said

notice. As the complainant smelled foul play on the part

of the accused, she lodged report to the Police Station

Sadar Nagpur for the offence punishable under section 406

of the IPC. Thus, the facts of the above decision are

different from the facts of the present case. Therefore,

the ratio laid down in the said decision cannot be made

applicable to this case to state that there can be

criminal action against the applicants though Civil

remedy is available to respondent No.2.

15. For the reasons discussed herein above, we hold

that Crime No.14 of 2017 registered with Ajintha Police

Station against the applicants for the offence punishable

under section 406 read with section 34 of the IPC is not

sustainable and the same is liable to be quashed.

                                      ( 15 )                           cria478.17

Accordingly,   the   same   is   quashed   and   set   aside.     The 

Criminal Application is thus allowed.

16. Above observations are confined to adjudication

of this application and in any manner they will not come

in the way of the respondent No.2 in any other pending

proceedings or the proceedings that may be filed by him

in connection with the transaction in this matter.

       [S.M.GAVHANE,J.]                         [S.S.SHINDE,J.]


snk/2017/AUG17/cria478.17