Madras High Court

K.Malathy vs State Rep on 24 November, 2021

                                                                                      Crl. O.P. No. 19741 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated 24.11.2021

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                               Crl. O.P. No. 19741 of 2017
                                                           and
                                           Crl.M.P.No.11910 and 11911 of 2017


                     1.K.Malathy
                     2.P.Varalakshmi                        ... Petitioners/Accused 2 & 3

                                                            Versus

                     1.State rep,
                     Inspector of Police,
                     V-5 Thirumanglam Police Station,
                     Crime Branch,Chennai – 101.            ...1st Respondent/Complainant

                     2.K.Chandran                           ... 2nd Respondent/ Defacto Complainant



                     PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to call
                     for the records relating to the Charge Sheet in C.C.5618 of 2012 pending before
                     the learned 10th Metropolitan Magistrate Court, Egmore, Chennai and quash
                     the above proceedings pending against the petitioners herein.


                                    For Petitioners       : Mr.N.R.Elango
                                                            Senior Counsel for
                                                            Mr.K. Kuppusamy

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                                                                                           Crl. O.P. No. 19741 of 2017




                                        For Respondents        : Mr.R.Kishore Kumar
                                                                 Government Advocate (Crl.Side) for R1

                                                               : Mr.E.Manikandan for R2.



                                                             ORDER

(This case has been heard through video conference)

This Criminal Original Petition has been filed to quash the Charge Sheet

in C.C.5618 of 2012 filed under Section 406, 420 r/w 34 IPC before the learned

10th Metropolitan Magistrate Court, Egmore, Chennai.

2.The crux of the charge is that A1 has purchased a land to the extent of

14 cents from the defacto complainant and others in Survey No.207/9

Thirumangalam Village, Koyembedu and also Power of Attorney was given for

the remaining 14 cents in respect of the defacto complainant. The sale deed in

respect of 14 cents was executed in the year 1985. After sometime, he has also

registered the remaining 14 cents through the Power Agent of the defacto

complainant. In the meanwhile, paternal aunts of the defacto complainant

claimed the share in the property, wherein A1 was also made as 8th defendant

in the suit. When the matter stood thus, the accused A2 and A3 /petitioners

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herein have also filed a separate suits against one Gopala Krishnan/A1 claiming

the right over the property. Due to such pendency of the cases A1 who was

original purchaser of the property appears to have demanded the sale

consideration from the vendor and admitted to handover the property. However,

the vendor has executed only negotiable instruments towards the payment of the

sale consideration. When the matter stood thus, A1 to A3 sold the property to

A4 and A5 thereby they committed offence under Section 406, 420 r/w 34

IPC.

3. The learned counsel appearing for the Petitioner vehemently contented

that absolutely there is no materials as against A2 and A3. It is also submitted

that A2 and A3 have admittedly filed a Civil Suit against A1, which culminated

into the Second Appeal in S.A.No.1663 of 2003 before this Court. It appears

that in the above case a Memorandum of Compromise was entered into between

A1 and the present petitioners, wherein they agreed to sell the property jointly.

Pursuant to the same, the property has been sold to A4 and A5. Hence it is his

contention that merely because some materials have been found against A1 by

others, at no stretch of imagination, can be construed that there was no

entrustment of the property to constitute an offence under Section 406 IPC or to

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attact the offence under Section 420 IPC. Hence, the entire prosecution

materials have collected taken as defence value, the same would not constitute

the offence under Section 406 or 420 of IPC.

4. The learned counsel appearing for the 3rd Respondent submitted that as

the final report has already been filed, it is matter for evidence, only trial Court

has to decide the matter.

5. No doubt, normally when the final report is filed and the materials

collected by the prosecution prima facie indicates some allegations against the

persons who arrayed as accused. The Court which exercising power under

Section 482 Cr.P.C., normally would not interfere with the final report. At the

same time the entire materials collected by the prosecution taken in face value

do not constitute an offence against the person, still forcing the parties to go for

continuing the trial is nothing but interfering the rights of the persons and also

an abuse of process of law.

6. On persual of entire final report and statement of witnesses indicate

that the grievances of the defacto complainant that his grand father has left 28

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cents of land in Chennai, in the year 1985, they sold 14 cents to A1 and in

respect of remaining 14 cents they executed a Power of Attorney in favour of

the Gopinath. Later, the Power Agent also executed sale deed in favour of the

Gopala Krihnan who was arrayed as A1 in the Case. Thereafter, the Civil Suits

have been filed by the paternal aunts claiming share in the property. Similarly,

one Varalakshmi and malathy the petitioners herein were also filed a suit

against the A1 i.e., Gopalakrishnan claiming right over the property. The suit

filed by the petitioners herein culminated in to Second Appeal in S.A.No.1663

of 2003, it appears that in the above suit a compromise was recorded between

A1 and the present petitioners, wherein they agreed to jointly deal with the

property. Pursuant to the decree and judgment now the property has been sold.

It is to be noted that the defacto complainant who is claiming as one of the co-

sharers, has lodged the present FIR as against the petitioners. It is to be noted

that the main grievance appeared with regard to the share in the property.

Admittedly, their mother has filed a suit for partition in the property. Such being

the position, In the event, they succeeded, certainly they entitled to have share

in the property. As far as the offences charged against the petitioners under

Sections 406 and 420 IPC are concernd except general allegations no material

available but they also charged for conspiracy in dealing with the property. To

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show that all the accused has conspiracy no material available. Mere filing of

the suit claiming the right, the same cannot be a ground to infer the conspiracy.

Further Section 405 I.P.C. reads as follows:

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 1[Explanation 2[1].—A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] 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

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amount of the said contribution in violation of a direction of law as aforesaid.] 4[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.] Illustrations

(a) A, being executor to the will of a deceased person, dishon- estly disobeys the law which directs him to divide the effects according to the will, and appropriate them to his own use. A has committed criminal breach of trust.

(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust

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(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z’s direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company’s paper. A dishonestly disobeys the direction and employs the money in his own business. A has committed criminal breach of trust.

(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z’s advantage to hold shares in the Bank of Bengal, disobeys Z’s directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company’s paper, here, though Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.

(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or im- plied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.

(f) A, a carrier, is entrusted by Z with property to be carried

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by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust. Comments Criminal Conspiracy Sanction for prosecution is not necessary if a public servant is charged for offence of entering into a criminal conspiracy for committed breach of trust; State of Kerala v. Padmanabham Nair, 1999 Cr LJ 3696 (SC). Criminal breach of trust: Meaning and extent It must be proved that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested in some person other than the accused, and that the accused held that property on behalf of that person. A relationship is created between the transferor and transferee, whereunder the transferor remains the owner of the property and the transferee has legal custody of the property for the benefit of the transferor himself or transferee has only the custody of the property for the benefit of the transferor himself or someone else. At best, the transferee obtains in the property entrusted to him only special interest limited to claim for his charges in respect of its safe retention, and under no circumstances does he acquire a right to dispose of that property in contravention of the condition of the entrustment; Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575. Entrustment The word entrusted in the section is very important unless there is entrustment,

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there can be no offence under the section; Ramaswami Nadar v. State of Madras, AIR 1958 SC 56.”.

7. On a careful perusal of the section and illustrations, the act of the

persons in the present petition do not fall under any of the categories so as to

attract the offece of Criminal breach of trust. Similarly, to attact the offence

under Section 420 the ingredients of cheating has to be established. Section

415 of IPC reads as follows:

“415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to

“cheat”.”

8. It is not the case of the defacto complainant or the prosecution, that the

accused have deceived the defacto complainant from the very inception or

played fradulant or dishonest act inducing them to part with the property. In

such view of the matter offence under Section 420 also would not be attracted

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even the entire prosecution is taken as proved. In such being the matter,

continuing the prosecution is nothing but an abuse of process of law.

9. The suit has already been filed by the defacto complainant against

predecessor in title. Even assuming that excess shares dealt with by the

petitioners that will not deter the co-sharer from getting their shares, legally if

they are entitled. In such view of the matter continuation of the proceedings as

against A2 and A3 is quashed.

10. In the result, the proceedings in C.C.5618 of 2012, before the learned

10th metropolitan Magistrate Court, Egmore, Chennai with regard to A2 and

A3 the petitioners herein are quashed. Accordingly, this Criminal Original

Petition is allowed. Consequently, connected Criminal Miscellaneous Petitions

are closed.

24.11.2021 Index : Yes / No Internet: Yes Speaking/non speaking order psa/ggs

1.The 10th metropolitan Magistrate Court, Egmore, Chennai.