Abdul Razak Dar & Others vs State Of J&K
2022 Latest Caselaw 705 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                              Reserved on:   20.05.2022
                                              Pronounced on: 25.05.2022


                          CRMC No.374/2018
                              c/w
                          CRMC No.378/2018


ABDUL RAZAK DAR & OTHERS                           ... PETITIONER(S)
                   Through: - Mr. I. Sofi, Advocate.

Vs.

STATE OF J&K                                     ...RESPONDENT(S)
                   Through: - Mr. A. S. Sodhi, AAG.


CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                             JUDGMENT

CRMC No.374/2018

1) The petitioners have challenged FIR No.124/2018 for offences

under Section 420, 406 RPC registered with Police Station, Sumbal.

2) It appears that complainant Gh. Hassan Sheikh had lodged a

written report with the police alleging therein that about three years

back he had offered to marry his daughter with petitioner No.2, who,

after considering the proposal, accepted the same. It was further alleged

that the engagement between the daughter of the complainant and

petitioner No.2 took place and even the date of marriage was also fixed.

It was further alleged that the complainant has spent a lot of money in Page |2 CRMC No.374/2018 c/w CRMC No.378/2018

making arrangements for proposed marriage but when the date of the

marriage approached, the complainant was informed by petitioner No.1

that petitioner No.2 is not ready for the marriage. It was further alleged

that the petitioners in connivance with each other, caused financial loss

as well as loss to the reputation of the complainant. On the basis of

these allegations, the impugned FIR came to be registered.

3) The petitioners have challenged the impugned FIR, primarily, on

the ground that the contents thereof do not disclose commission of any

offence against them.

3) I have heard learned counsel for the parties and perused the

material on record.

4) The impugned FIR has been registered for offences under

Section 406, 420 RPC. In order to test the merits of the contention

raised by the petitioners, it would be necessary to determine as to

whether ingredients of offences under Section 420, 406 RPC are

disclosed from the contents of the impugned FIR.

5) In order to attract the ingredients of Section 420, there has to an

element of cheating on the part of the accused. Cheating has been

defined in Section 415 RPC. To constitute offence under Section 420,

there must be a fraudulent or dishonest inducement on the part of a

person and thereby the other party must have parted with his property.

To establish an offence under Section 420 RPC, it has to be shown that Page |3 CRMC No.374/2018 c/w CRMC No.378/2018

there was a fraudulent and dishonest intention at the time of

commission of the offence and that the person practising deceit had

obtained the property by fraudulent inducement and willful

representation.

6) "Dishonestly" has been defined in Section 24 of RPC to mean

deliberate intention to cause wrongful gain or wrongful loss and when,

with such intention, deception is practised and delivery of property is

induced, then the offence under Section 420 RPC can be said to have

been committed.

7) So far as offence under Section 406 RPC is concerned, it

provides punishment for criminal breach of trust committed. Criminal

breach of trust has been defined in Section 405 of RPC, which reads 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 willfully suffers any other person so to do, commits "criminal breach of trust".

8) From a perusal of the aforesaid provision, it is clear that it entails

misappropriation or conversion of another's property for one's own use

with a dishonest intention.

Page |4 CRMC No.374/2018 c/w CRMC No.378/2018

9) Let us now analyze the contents of the impugned FIR in the light

of the ingredients of the offences under Section 420/406 RPC, as have

been discussed hereinbefore. As already noticed, to constitute an

offence of cheating, the person who has been cheated must have been

made to part with his property by fraudulent or dishonest inducement

on the part of the accused person. In the instant case, the complainant

has nowhere alleged that he has parted with any property or he has been

made to deliver any property to the accused persons. Thus, the

allegations made in the impugned FIR do not disclose commission of

offence under Section 420 RPC.

10) That takes us to the question whether offence under Section 406

RPC is made out from the allegations made in the impugned FIR. As

already noted, the offence of criminal breach of trust entails

misappropriation or conversion of another's property for one's own use

with a dishonest intention. The complainant has nowhere alleged in the

impugned FIR that the accused persons have either misappropriate his

property or converted his property to their own use with a dishonest

intention. In fact, there is no allegation in the impugned FIR that

delivery of any property has taken place from the complainant to the

accused. Thus, a bare perusal of the impugned FIR does not disclose

commission of offence under Section 406 RPC as well.

11) It is a well settled law that if the contents of the FIR/complaint

do not disclose commission of any offence, the same is liable to be Page |5 CRMC No.374/2018 c/w CRMC No.378/2018

quashed. In the instant case, a bare perusal of the impugned FIR do not

disclose commission of any offence, as such, continuance of criminal

proceedings against the petitioners on the basis of the impugned FIR

would amount to abuse of process of law. Thus, this is a fit case where

this Court should exercise its powers under Section 482 of Cr. P. C to

quash the impugned FIR and the proceedings emanating therefrom.

12) Accordingly, the petition is allowed and the impugned FIR and

the proceedings emanating therefrom are quashed.

CRMC No.378/2018

Through the medium of this petition, the petitioners have

challenged order dated 12.09.2018, passed by learned Principal

Sessions Judge, Bandipora, whereby, while granting anticipatory bail to

the petitioners, the learned Sessions Judge has restricted the same to the

offences carrying punishment upto five years.

Since the FIR in which the petitioners are seeking bail, stands

quashed, as such, the instant petition has been rendered infructuous.

The same is disposed of accordingly.

(SANJAY DHAR) JUDGE

Srinagar, 25.05.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:        Yes/No
                   Whether the order is reportable:      Yes/No