Sanjay Kumar Srivastava vs The State Of Jharkhand
2023 Latest Caselaw 2350 Jhar

                              1                           Cr.M.P. No.1829 of 2023




      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr.M.P. No. 1829 of 2023


1. Sanjay Kumar Srivastava, aged about 59 years, son of late Shiv
   Narayan Lal, resident of Anthem Apartment, Flat No. 303, Opposite
   Tagore Hill, P.O.- Morabadi and P.S. Morabadi, Dist. Ranchi
   (Jharkhand)
2. Sanjay Kumar, aged about 59 years, son of late Talkeshwar Singh,
   resident of Qr. No. 2C/58 Jawahar Nagar Colony, Kanke Road, P.O.
   Ranchi University, P.S. Gonda, Dist. Ranchi (Jharkhand)
3. Pradeep Kumar Singh, aged about 39 years, son of late R.P. Singh,
   resident of Qr. No. 2C/42 Jawahar Nagar CCL Colony, Kanke Road,
   P.O. Ranchi University, P.S. Gonda, Dist. Ranchi (Jharkhand)
4. Sanjay Kumar Choubey, aged about 56 years, son of late Lallan Prasad
   Choubey, resident of C-10, G.M. Colony, Dhori, P.O. Dhori, and P.S.
   Bermo, Dist. Bokaro
5. Sudha Rani, aged about 36 years, wife of A.K. Chaubey, resident of
   2B/65 Jawahar Nagar Colony, Kanke Road, P.O. Ranchi University,
   P.S. Gonda, Dist. Ranchi (Jharkhand)
6. Ravi Kumar Chouhan, aged about 57 years, son of Manohar Lal,
   resident of Flat No. 4C, Richa Enclave, Adalhatu, P.O. Kanke, P.S.
   Kanke, Dist. Ranchi (Jharkhand)
7. Jitendra Kumar, aged about 33 years, son of Lakshman Mandal,
   resident of 2B/51 Jawahar Nagar Colony, Kanke Road, P.O. Ranchi
   University, P.S. Gonda, Dist. Ranchi (Jharkhand)
8. Sunil Kumar Singh, aged about 58 years, son of late Ramjee Singh,
   resident of 3A/15 Jawahar Nagar Colony, Kanke Road, P.O. Ranchi
   University, P.S. Gonda, Dist. Ranchi (Jharkhand)
9. Ishwar Chandra Mehta @ I.C. Mehta, aged about 61 years, son of
   Haribansh Mehta, resident of 4A, Ramakant Apartment Lane-3, Anand
   Gram, P.O. Morabadi, P.S. Morabadi, Dist. Ranchi
                                  ....                Petitioners


                            Versus

1. The State of Jharkhand
                                         2                        Cr.M.P. No.1829 of 2023




         2. Mukesh Kumar Singh, son of late S.N. Singh, resident of Plot No. 147,
            Lalit Narayan Mishra Colony, (LN Mishra Colony), Itki Road, P.O.
            Hehal, P.S. Pandra, Dist. Ranchi (Jhakhand) one of directors of M/s
            Privilege Housing Private Limited having registered office at C/o Shir
            AK Singh, Mandir Marg, Jaiprakash Nagar, Baraitu, P.O. & P.S.
            Bariatu, Dist. Ranchi
                                                ....                 Opp. Parties

                                       PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                       .....

For the Petitioner : Mr. Indrajit Sinha, Advocate : Mr. Ankit Vishal, Advocate For the State : Mrs. Amrita Kumari, Addl. P.P. For O.P. No.2 : Mr. Pandey Neeraj Rai, Advocate : Mr. Rohit Ranjan Sinha, Advocate : Mr. Akchansh Kishore, Advocate : Mr. Saurabh Sagar, Advocate : Mr. Mohit Mukul, Advocate : Mr. Piyush, Advocate .....

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 482 Cr.P.C. with a prayer

for quashing the entire criminal proceeding initiated against the

petitioners in connection with Complaint Case No. 10686 of 2022

including the order dated 29.03.2023, passed by the learned

Judicial Magistrate 1st Class, Ranchi, whereby and where under,

cognizance has been taken against the petitioners under Section

406 of Indian Penal Code.

3. The brief facts of the case is that the petitioners being the

members of M/s. Privilege CCL Employees Grih Nirman

Swawlambi Sahkari Samiti Limited engaged the complainant as a

consultant for construction of a cluster of houses of the said

society with a promise to pay Rs.200/- per sq. ft. of the

construction and the petitioners obtained necessary permission

for the said cooperative society but there was dispute between the

complainant and the petitioners in respect of engaging the

contractor to carry out the construction. While the complainant

proposed engagement of M/s Monalisa Construction, the

petitioners in capacity of executive members of the said

cooperative society engaged M/s R.R. Construction and thereafter

the petitioners unilaterally cancelled the agreement entered into

with the complainant and being aggrieved by that, the

complainant instituted this case.

4. It is submitted by the learned counsel for the petitioners that

even assuming for the sake of argument that the contents of the

complainant, statement under solemn affirmation of the

complainant and the statement of inquiry witnesses are true in its

entirety, still, the offence punishable under Section 406 of Indian

Penal Code is not made out. In this respect, the learned counsel

for the petitioners relied upon the judgment of Hon'ble Supreme

Court of India in the case of M.N.G. Bharateesh Reedy vs.

Ramesh Ranganathan & Anr. reported in 2022 SCC OnLine SC

1061, paragraph nos. 21 to 24 of which reads as under:-

21. The offence of criminal breach of trust contains two ingredients : (i) entrusting any person with property, or with any dominion over property; and (ii) the person entrusted dishonestly misappropriates or converts to his own use that property to the detriment of the person who entrusted it.

22. In Anwar Chand Sab Nanadikar v. State of Karnataka6 a two-judge bench restated the essential ingredients of the offence of criminal breach of trust in the following words:

"7. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1)

entrustment, and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime."

23. In Vijay Kumar Ghai v. State of West Bengal7 another two-judge bench held that entrustment of property is pivotal to constitute an offence under section 405 of the IPC. The relevant extract reads as follows:

"28. "Entrustment" of property under Section 405 of the Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, "in any manner entrusted with property". So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of "trust". A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code."

24. None of the ingredients of the offence of criminal breach of trust have been demonstrated on the allegations in the complaint as they stand. The first respondent alleges that the Appellant caused breach of trust by issuing grossly irregular bills, which adversely affected his professional fees. However, an alleged breach of the contractual terms does not ipso facto constitute the offence of the criminal breach of trust without there being a clear case of entrustment. No element of entrustment has been prima facie established based on the facts and circumstances of the present matter. Therefore, the ingredients of the offence of criminal breach of trust are ex facie not made out on the basis of the complaint as it stands.

5. It is next submitted by the learned counsel for the petitioners

that this criminal case has been instituted for wreaking vengeance

upon the petitioners though essentially the dispute between the

parties is at best a civil dispute and in this respect, learned counsel

for the petitioners relied upon the judgment of Hon'ble Supreme

Court of India in the case of Krishna Lal Chawla & Ors. vs. State

of Uttar Pradesh & Anr. reported in (2021) 5 SCC 435, paragraph

nos. 19, 21, 22 and 23 of which reads as under:-

"19. Similarly, the power conferred on the Magistrate under Section 202 CrPC to postpone the issue of process pursuant to a private complaint also provides an important avenue for filtering out of frivolous complaints that must be fully exercised. A four-Judge Bench of this Court has eloquently expounded on this in Chandra Deo Singh v. Prokash Chandra Bose [Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430 : (1963) 2 Cri LJ 397] : (AIR p. 1433, para 7) "7. ... No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant."

(emphasis supplied) Thus, it is clear that, on receipt of a private complaint, the Magistrate must first, scrutinise it to examine if the allegations made in the private complaint, inter alia, smack of an instance of frivolous litigation; and second, examine and elicit the material that supports the case of the complainant.

21.All of this leads to one inescapable conclusion. That the trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him. This Court has earlier emphasised on the high degree of responsibility shouldered by the trial Judges in All India Judges' Assn. (1) v. Union of India [All India Judges' Assn. (1) v. Union of India, (1992) 1 SCC 119 : 1992 SCC (L&S) 9] . Ranganath Misra, C.J. (as he was then) writing for himself and two others stated: (SCC p. 134, para 42) "42. The trial Judge is the kingpin in the hierarchical system of administration of justice.

He directly comes in contact with the litigant during the proceedings in Court. On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered. The personality, knowledge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the Court's functioning successful."

22. Frivolous litigation should not become the order of the day in India. From misusing the public interest litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta. The Indian judiciary has taken cognizance of this issue. In 2014, this Court elucidated as follows, the plight of a litigant caught in the cobweb of frivolous proceedings in Subrata Roy Sahara v. Union of India [Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 : (2014) 4 SCC (Civ) 424 : (2014) 3 SCC (Cri) 712] : (SCC p. 642, para 191)

"191. ... One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his."

While the Court's ruling pertained to civil proceedings, these observations ring true for the criminal justice machinery as well. We note, with regret, that 7 years hence, and there has still been no reduction in such plight. A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself.

23. As aforesaid, the trial courts and the Magistrates have an important role in curbing this injustice. They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and

distraught litigant. We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land."

6. It is next submitted by the learned counsel for the petitioners

that there is no allegation of entrustment of any property to the

petitioners nor there is allegation of any dishonest

misappropriation which is sine-qua-non to constitute the offence

punishable under Section 406 of Indian Penal Code. Hence, the

continuation of the criminal proceeding against the petitioners

will amount to abuse of process of the court. It is next submitted

by the learned counsel for the petitioners that the complainant

and one of his partner namely Birendra Kumar has fraudulently

registered a company in the name and style of 'Avirodh Dhara

LLP' by dishonestly using the address of petitioner no.2 without

his permission/information and when it came to the knowledge

of the petitioners Argora P.S. Case No. 156 of 2023 has been

instituted on 08.04.2023, inter alia against the complainant. It is

further submitted by the learned counsel for the petitioners that

vacillating approach of the complainant right from the beginning

has perplexed the society and apart from other failures, a detailed

letter annexed as Annexure-7 to this criminal miscellaneous

petition, the unscientific working style and mala fide intention of

the company of the complainant became evident, the details of

which has been mentioned in the said annexure. It is then

submitted that in the interest of the society, the society decided

negotiation with M/s R.R. Construction. It is lastly submitted that

entire criminal proceeding initiated against the petitioners in

connection with Complaint Case No. 10686 of 2022 including the

order dated 29.03.2023, passed by the learned Judicial Magistrate

1st Class, Ranchi be quashed.

7. Learned Additional Public Prosecutor and the learned counsel

for the opposite party no.2 on the other hand vehemently opposes

the prayer for quashing the entire criminal proceeding initiated

against the petitioners in connection with Complaint Case No.

10686 of 2022 including the order dated 29.03.2023, passed by the

learned Judicial Magistrate 1st Class, Ranchi and submits that the

petitioners have done the acts, deeds and thing with an dishonest

intention of causing wrongful gain to others and wrongful loss to

the complainant. Hence, it is submitted that this criminal

miscellaneous petition being without any merit be dismissed.

8. Having heard the submissions made at the Bar and after going

through the materials in the record, this Court finds that there is

no allegation against the petitioners of having committed any

dishonest misappropriation of any property entrusted to them

and in fact, there is no allegation of entrustment of any property

to the petitioners. At best it is a case of civil dispute where the

agreement entered into by the society by which the petitioners are

the members of the executive committee and the complainant was

terminated by the society and if in terms of the said agreement, if

any money is due and payable to the complainant; he can get so,

by making the necessary demand from the petitioners but no such

quantified demand has been averred anywhere.

9. Under, such circumstances, in view of the settled principle of

law in the case of M.N.G. Bharateesh Reedy vs. Ramesh

Ranganathan & Anr. (supra), this Court has no hesitation in

holding that the averments made in the complaint, statement on

solemn affirmation of the complainant and the statement of the

inquiry witnesses even if treated to be true in its entirety still, no

offence punishable under Section 406 of Indian Penal Code is

made out. Hence, in the considered opinion of this Court the

continuation of the criminal proceeding will amount to abuse of

process of the court and this is a fit case where the entire criminal

proceeding initiated against the petitioners in connection with

Complaint Case No. 10686 of 2022 including the order dated

29.03.2023, passed by the learned Judicial Magistrate 1st Class,

Ranchi be quashed and set aside qua the petitioners only.

10. Accordingly, the entire criminal proceeding initiated against the

petitioners in connection with Complaint Case No. 10686 of 2022

including the order dated 29.03.2023, passed by the learned

Judicial Magistrate 1st Class, Ranchi is quashed and set aside qua

the petitioners only.

11. In the result, this criminal miscellaneous petition is allowed.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 19th July, 2023 AFR/Sonu-Gunjan/-