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Gauhati High Court · body

1995 DIGILAW 211 (GAU)

Md. Abdul Salem v. Jiflul Haque

1995-09-05

A.K.PATNAIK

body1995
This is a petition filed under section 482/397 of the Criminal Procedure Code, 1973 for quashing the proceedings in CR Case No. 929/94 pending in the Court of the Chief Judicial Magistrate, Mangaldoi, Darrang as well as the order dated 6.6.94 passed by the said Court in the said case. 2. The facts briefly are that the opposite party filed a complaint dated 6.6.94 in the Court of the Chief Judicial Magistrate, Mangaldoi, against the petitioner. In the said complaint, the opposite party stated that the petitioner owned a bus bearing No. AMZ 6858 but could not pay the dues of the financier of the bus and approached the opposite party and by an agreement dated 23.9.91 the opposite party agreed to buy the bus at a consideration of Rs.2,65,000/-. In the said agreement it was stipulated that after payment of the instalment by the opposite party to the financier, the petitioner will transfer the bus in favour of the opposite party. Pursuant to the agreement, on 23.9.91, the petitioner handed over the bus to the opposite party, and thereafter the opposite party started plying the bus. In January, 1993, however, the petitioner made an offer to the opposite party to ply the bus on hire for an amount of Rs. 12,000/- per month. Since the opposite party was engaged with other business, he accepted the proposal and allowed the petitioner to ply the bus. The petitioner regularly paid the hire charges for a period of 6 (six) months, but thereafter did not pay the same regularly on the plea that he was suffering a loss and it was difficult to pay the same. In the meanwhile, the opposite party paid all the instalments of the financier and requested the petitioner to transfer the bus but the petitioner did not pay any heed to the said request and the opposite party has come to know that the petitioner has sold the bus to the accused No.2. After receipt of the said complaint and after examining the complaint, the learned Chief Judicial Magistrate, Mangaldoi found a prima facie case under section 406/420 of the Indian Penal Code against the petitioner and by order dated 6.6.94 took cognigance of the complaint and issued warrant of arrest with bail of Rs.1,000/- against the petitioner fixing the case to 2.7.94 for appearance. By the said order, the learned Chief Judicial Magistrate has also directed the Officer-in-charge, Dhula Police Station to seize the bus and keep the same in the Police Station until further orders. It is this proceeding in CR Case No.929/94 before the learned Chief Judicial Magistrate, Mangaldoi and the aforesaid order dated 6.6.94 passed by the Chief Judicial Magistrate, Mangaldoi which have been challenged in this criminal revision. 3. At the hearing Mr. NS Deka, learned counsel for the petitioner, submitted that the dispute between the parties relating to the bus was of a civil nature and the remedy of the opposite party was by way of civil suit and not a criminal proceedings. Hence, this Court in exercise of its powers under section 482 of Criminal Procedure Code, 1973 ought to quash the criminal proceeding before the Chief Judicial Magistrate as well as the impugned order dated 6.6.94 passed by him in CR Case No.929/94. In support of his submission, Mr. Deka relied on the judgments of the Apex Court in the case of Trilok Singh & others vs. Satya Deo, AIR 1979 SC 850 ; Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Chandrojiraw Angre, AIR 1988 SC 709 and Superintendent & Remembrancer of Legal Affairs, West Bengal vs. Mohan Singh & others, (1975) 3 SCC 706 . 4. In reply, Mr. KK Mahanta, learned counsel for the opposite party, submitted that it is settled by the Apex Court that where the facts as stated in the complaint, if accepted make out an offence against the accused, the High Court would not exercise its jurisdiction under section 482 of the Code of Criminal Procedure, 1973. He further submitted that the facts as stated in the complaint as well as the statement of the complainant before the learned Chief Judicial Magistrate, clearly disclosed offences under section 406 and 420 of the Indian Penal Code. Hence this Court ought not to cut short the criminal proceeding and quash the same under section 482 of the Code of Criminal Procedure, 1973. 5. Hence this Court ought not to cut short the criminal proceeding and quash the same under section 482 of the Code of Criminal Procedure, 1973. 5. On the aforesaid submission of the learned counsel for the parties, the on ly question to be decided in this revision is whether accepting the facts as stated in the complaint of the opposite party before the Chief Judicial Magistrate, to be true, an offence either under section 406 or section 420 of the Indian Penal Code is made out against the petitioner. 6. Section 406 of the Indian Penal Code stipulates the punishment for the offence of criminal breach of trust and section 405 defines criminal breach of trust in the following words : “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.” A reading of the aforesaid definition of the criminal breach of trust in section 405 of the Indian Penal Code would show that dishonest disposal of property entrusted to a person in violation of any legal contract which he has made touching the discharge of the trust in relation to the property amounts to criminal breach of trust. As per the facts in the complaints, the opposite party handed over the bus to the petitioner pursuant to the agreement dated 23.9.91 and the said agreement constituted a legal contract touching the discharge of such trust relating to the bus. It is further stated in the complaint that as per the said agreement dated 23.9.91, after the last instalment of the financier was paid by the opposite party, the petitioner was to transfer the bus to the opposite party but although the opposite party paid the last instalment of the financier, the petitioner instead of transferring the bus to the opposite party has sold the same to the accused No.2 contrary to the agreement dated 23.9.91. Thus the facts stated in the complaint of the opposite party clearly disclosed disposal of the bus entrusted to the petitioner by the opposite party in violation of the legal contract which the petitioner made with the opposite party touching the discharge of the trust relating to the bus. 7. The aforesaid section 405 of the Indian Penal Code, however, indicates that mere disposal of a property entrusted to a person in violation of a legal contract without any dishonest intention would not amount to an offence of criminal breach of trust. In other words, unless dishonest intention on the part of the person disposing of the property contrary to the terms of the contract exists, the remedy of the complainant would be by way of civil suit for breach of contract and not criminal proceedings for criminal breach of trust. The further question to be decided in this revision therefore is as to whether the facts stated in the complaint of the opposite party before the Chief Judicial Magistrate indicated dishonest intention on the part of the petitioner. Section 24 of the Indian Penal Code defines the word 'dishonest' as follows : “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.” Accordingly the word 'dishonestly' in section 405 of the Indian Penal Code has to be understood to mean an intention on the part of the accused to cause wrongful gain to one person or wrongful loss to another. In the complaint, it has been alleged that as per the agreement dated 23.9.91 the opposite party was to pay the instalments of the financier of the petitioner and that on payment of the last such instalment being made by the opposite party, the petitioner was to transfer the vehicle to the opposite party. In the complaint, it is further stated that the opposite party has paid the full amount to the financier and yet the petitioner instead of transferring the bus to the opposite party has sold the same to accused No.2. In the complaint, it is further stated that the opposite party has paid the full amount to the financier and yet the petitioner instead of transferring the bus to the opposite party has sold the same to accused No.2. On these facts stated in the complaint, the disposal of the bus by the petitioner to accused No.2 obviously would cause wrongful loss to the opposite party and it is difficult to hold on the facts as stated in the complaint that there was no dishonest intention on the part of the petitioner. 8. At later stage of the criminal proceeding, however, evidence may come to record to show that there was no such dishonest intention and the trial Court will have to record a finding as to whether this was a mere case of breach of contract giving rise to cause to action for a civil dispute or dishonest disposal of a property by the petitioner contrary to the legal contract touching the discharge of the trust relating to the bus amounting to the offence of criminal breach of trust but at this stage on the facts as alleged in the complaint it is difficult for this Court to hold that no offence of criminal breach of trust is made out against the petitioner and to quash the criminal proceedings. In the case of Smti Chand Dhawan vs. Jawahar Lal & others, AIR 1992 SC 1379 the Supreme Court observed: “The allegations made by the complainant in law constitute and spell out an offence. If so, the only question that could have been considered at this stage is whether the continuance of the proceedings would be an abuse of the process of the Court. This Court has in various decisions examined the scope of the power under section 482 Cr PC, and has reiterated the principle that the High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the complaint do not constitute an offence or that the exercise of the power is necessary either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such power should be exercised. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such power should be exercised. When the allegations in the complaint prima facie constitute the offence against any or all of the respondents in the absence of materials on record to show that the continuance of the proceedings would be an abuse of the process of the Court or would defeat the ends of justice, the High Court would not be justified in quashing the complaint.” 9. In the case of Trilok Singh vs. Satya Deo, AIR 1979 SC 850 , cited by Mr. Deka, the Court had found that there was an agreement in accordance with which money was advanced by the financier to the complainant and under the said agreement the financier had a right to seize the truck on the complainant's failure to pay the instalments in time. Since the complainant had failed to pay the instalments in time, the financier had seized the truck and a complaint petition was filed alleging offences under section 395,468,465,471,412, 120-B/34 of the Indian Penal Code. The Apex Court took a view that the dispute between the parties was essentially a civil dispute and quashed the criminal proceeding in question initiated by the complainant against the financier. In the case of Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709 relied on by Mr. Deka, the Apex Court found that the dispute related to the trust properties of Srikrishna Madhava Trust and after considering the relevant documents including the trust deed and the correspondence and the relationship between the settler and the son and his wife and the subsequent fall out, the Apex Court took the view that no useful purpose would be served by allowing the criminal proceeding to continue and quashed the same. Thus the facts of the two cases cited by Mr. Deka were entirely different from the facts of instant case. Regarding the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Mohan Singh & others, (1975) 3 SCC 706 cited by Mr. Deka, I find that the Apex Court took the view in that case that the High Court was right in quashing a criminal proceeding because the prosecution had failed to make any progress in the criminal case for a period of over a year and half. Deka, I find that the Apex Court took the view in that case that the High Court was right in quashing a criminal proceeding because the prosecution had failed to make any progress in the criminal case for a period of over a year and half. The said decision, therefore, had no bearing to the present case. As the facts alleged in the complaint of the opposite party make out an offence under section 406 of the Indian Penal Code against the petitioner, the criminal proceedings against the petitioner cannot be quashed and it is not necessary for me to further examine as to whether the said complaint also makes out an offence under section 420 of the Indian Penal Code against the petitioner. 10. In the result, the criminal revision has no merit and is accordingly dismissed and the interim order dated 16.6.94 staying the operation of the impugned order dated 6.6.94 as well as the seizure of the vehicle in question is hereby vacated.