Sumeet Kishor Nandeshwar vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 8712 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



              CRIMINAL APPLICATION (APL) NO.568 OF 2017



  Sumeet Kishor Nandeshwar,
  Aged about 38 years, Occ.
  Business, r/o. N.I.T. Ground,
  Plot No.559-B, Ekta Colony,
  Yadav Nagar, Wanjari Layout,
  Dr.Ambedkar Marg, Nagpur,
  Tq. and Distt. Nagpur.                  ..........      APPLICANT



          // VERSUS //


  1. State of Maharashtra,
      Through Police Station Officer,
      Police Station, Ramnagar,
      Chandrapur, Tq. and Distt.
      Chandrapur.

  2. Yogesh Jayant Mamidwar,
      Aged about 26 years, r/o.
      Wagaon Road, near Gajanan
      Mandir, Ram Nagar, 
      Chandrapur, Tq. and Distt.
      Chandrapur.                         ..........       RESPONDENTS


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  ___________________________________________________________  
               Mr.Y.B.Mandpe, Advocate h/f. Mr.H.N.Potbhare, 
               Advocate for the Appellant.
              Mr.S.S.Doifode, A.P.P. for Respondent No.1/State.
  ____________________________________________________________


                                     CORAM     :  R.K.DESHPANDE 
                                                          AND
                                                          M.G.GIRATKAR, JJ.

DATE : 15.11.2017.

ORAL JUDGMENT (Per M.G.Giratkar, J) :

1. The Criminal Application is admitted and heard finally

with the consent of the learned Counsel for the respective parties.

2. It is submitted that the applicant is a businessman doing

business with a name and style "M/s. UN Multitech Engineers and

Contractors" having partnership firm and doing the business of

constructing the PEB Sheds by taking various contracts. On

19.9.2016, an agreement between the applicant and respondent no.2

was executed. The said agreement is having several conditions and

the same is incorporated between the applicant and respondent no.2

and the same is duly signed and accepted by both the parties. As per

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the terms of the agreement, the present applicant used to prepare the

various maps as per the work allotted to the present applicant. Due

to various changes made by respondent no.2, the applicant was not

allowed to start work at the said site for the reasons best known to

respondent no.2. Without there being any intimation from

respondent no.2, present applicant has received a mail cancelling the

agreement from the side of respondent no.2. Applicant came to

know the fact that respondent no.2 was not agreeable to confirm the

increasing price in the material and was not ready to accept the

proposal and himself cancelled the said contract/agreement.

Respondent no.2 lodged a false report on 16.3.2017 in Police

Station, Ram Nagar, Chandrapur. First Information Report was

registered vide Crime No.550 of 2017 for the offence punishable

under Section 406 of the Indian Penal Code. At last, it is prayed to

quash and set aside the F.I.R. lodged by respondent no.2.

3. Heard the learned Counsel for the respective parties.

Offence punishable under Section 406 of the Indian Penal Code is

registered against the applicant. Section 406 of the Indian Penal

Code reads as under :

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Section 406. 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.

4. Criminal breach of Trust is defined under Section 405 of

the Indian Penal Code as under :

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".

[Explanation [1].--A person, being an employer [of an establishment

whether exempted under section 17 of the Employees' Provident

Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not]

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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.]

[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.]

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5. On a perusal of Section 406 of the Indian Penal Code, it

appears that there is a civil dispute between the applicant and

respondent no.2. Police Station, Ram Nagar, Chandrapur has

wrongly registered the crime. There is no allegation that any

property was entrusted to the applicant and he has committed

breach of trust. Hence, prima facie, offence punishable under Section

406 of the Indian Penal Code is not made out. Therefore, in view of

Judgment of Hon'ble Supreme Court in the case of S tate of Haryana

.vs. Bhajan Lal reported in 1992 Supp (1) SCC 335, First

Information Report bearing Crime No.550 of 2017, dt.16.3.2017

registered by Police Station, Ram Nagar, Chandrapur for the offence

punishable under Section 406 of the Indian Penal Code is liable to be

quashed and set aside. Hence, we pass the following order.

// ORDER //

The application is allowed in terms of prayer

clause (i) therein.

First Information Report bearing Crime No.550 of

2017, dt.16.3.2017 registered by Police Station, Ram

Nagar, Chandrapur for the offence punishable under

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Section 406 of the Indian Penal Code against the

applicant is quashed and set aside.

No order as to costs.

                               JUDGE                  JUDGE
   



  [jaiswal]





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