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2004 DIGILAW 958 (JHR)

AAKRIT SINGH v. STATE OF JHARKHAND

2004-09-17

AMARESHWAR SAHAY

body2004
Judgment : ( 1 ) IN this application, the petitioner has challenged the order dated 2-9-2002, passed by the Judicial Magistrate, ranchi in C. P. Case No. 481 of 2002, whereby the learned Magistrate has taken cognisance of the offences under Sections 420 and 406 of the Indian Penal Code against the petitioner. ( 2 ) THE Opposite Party No. 2, Dr. Raj narayan Raj filed a complaint before the learned Chief Judicial Magistrate, Ranchi on 2-8-2002 against the petitioner and his wife umravati Devi alleging therein that he had purchased a Mahendra Jeep bearing No. JH-11 /a-2953 from the wife of the petitioner. It is alleged that after using the vehicle for some time, he thought to resale the said vehicle to the petitioner and, accordingly he offered the petitioner to purchase of the said vehicle and then the petitioner is said to have agreed to purchase the same and both the parties agreed to the price of the vehicle at rs. 1,16,000/ -. Accordingly, a written agreement was executed between them on 3-1-2002. It is further alleged that as per the terms of the agreement, the complainant handed over the said Jeep to the petitioner and the petitioner was to pay 1,30,000/- on 20th of June, 2002 and after a sum of Rs. 20,000/- on 20th of July, 2002 as per the terms of the agreement. Lastly, it was alleged that even after expiry of the period as agreed between the parties, the petitioner neither paid the price for the vehicle agreed upon nor he returned the vehicle to the complainant. ( 3 ) THE complainant was examined on solemn affirmation and thereafter one witness was examined on his behalf during enquiry under Section 202, Cr. P. C. Subsequently by the impugned order, the learned judicial Magistrate took cognizance of the offences under Section 406, I. P. C. against the petitioner only and not against the wife of the petitioner who was also named as an accused in the complaint petition. ( 4 ) LEARNED counsel for the petitioner has submitted that even if the facts as alleged in the complaint petition and also the statement of the complainant on solemn affirmation as well as the statement of the witnesses examined during enquiry under Section 202, cr. P. C. are accepted on its face value, no offence at all punishable under the Indian Penal Code is made out. P. C. are accepted on its face value, no offence at all punishable under the Indian Penal Code is made out. Learned counsel for the petitioner further submitted that at best it will be a case of civil nature as it gives rise to a civil liability. ( 5 ) HE further submits that even according to the complaint petition, the ingredient of Section 420 and 406, I. P. C. are not attracted and, therefore, the cognizance taken under those Sections are bad in law. Justifying his arguments, learned counsel for the petitioner submits that even from the complaint petition, it appears that admittedly the proposal to sale the vehicle was from the side of the complainant and the vehicle was handed over to the petitioner as per the terms of the agreement, therefore, there was no inducement from the side of the petitioner to deliver the property or to compel the complainant for the same. Therefore, essential ingredient for Section 420, I. P. C. is not made out. ( 6 ) IN support of his submission, learned counsel for the petitioner has relied on a decision in the case of Sanjoy Kumar v. State of Bihar Reported in (1999 (2) Eastern Criminal Cases 888 ). ( 7 ) ON the other hand, Mr. Habib, learned counsel appearing for the complainant-Opposite party No. 2 has argued that the order taking cognizance cannot be interfered with at this stage, because from the said order, it appears that the learned Magistrate has fully applied his mind and thereafter finding a prima facie case against the accused persons has taken cognizance. He further submitted that the petitioner can very well be advised to raise all the points at the time of framing of charge. ( 8 ) LEARNED counsel for the Complainant-Opposite Party No. 2 further submitted that even if the liability may be of civil nature but it also discloses the offence punishable under ,the Indian Penal Code and, therefore, there is no bar, that both civil and criminal proceeding can be initiated in appropriate case. ( 8 ) LEARNED counsel for the Complainant-Opposite Party No. 2 further submitted that even if the liability may be of civil nature but it also discloses the offence punishable under ,the Indian Penal Code and, therefore, there is no bar, that both civil and criminal proceeding can be initiated in appropriate case. In support of his submission he relied on a decision in the case of Akhileshwar narayan Singh v. State of Jharkhand reported in (2002 (2) Eastern Criminal Cases 284) ( 9 ) TO appreciate the rival contention of the parties, it is necessary to examine the ingredients of Section 420 as well as section 406 of the, Indian Penal Code. For ready reference Section 420 is quoted hereinbelow :-"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. ( 10 ) IN the present case, the facts which has been stated hereinabove as alleged in the complaint petition, it appears that there is no allegation at all that at the time of its very inception, the accused had any intention to cheat the complainant. There is also no allegation that he dishonestly intended to deliver the vehicle as according to the complainant in the complaint petition itself. The complainant himself offered for sale of the vehicle and as per the terms and conditions of the agreement, he knowingly delivered the vehicle to the petitioner. Therefore, in my view the essential ingredient of Section 420, I. P. C. is absent. Therefore, the cognizance taken under Section 420, I. P. C. cannot be sustained. ( 11 ) SO far as cognizance under Section 406, I. P. C. is concerned, the ingredient of section 405, I. P. C. is necessary to be quoted i. e. criminal breach of trust. For ready reference section 405, I. P. C. is quoted hereinbelow :-405. Therefore, the cognizance taken under Section 420, I. P. C. cannot be sustained. ( 11 ) SO far as cognizance under Section 406, I. P. C. is concerned, the ingredient of section 405, I. P. C. is necessary to be quoted i. e. criminal breach of trust. For ready reference section 405, I. P. C. is quoted hereinbelow :-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 of 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". ( 12 ) FROM the plain reading of Section 405, i. P. C. it appears that whoever in any manner entrusted with the property or with the dominion over the property, dishonestly misappropriates or convert to his own use or disposes of the property in violation of the direction of law then he commits criminal breach of trust. ( 13 ) IN the present case, admittedly the property i. e. the vehicle was entrusted to the petitioner in terms of the agreement and admittedly up till now, the property has not been returned to the complainant. It is not a case of either of the parties that the price for the vehicle has been paid by the petitioner to the complainant and, therefore, in my view, the ingredient of Section 406, I. P. C. is made out and, accordingly, the order taking cognizance under Section 406 does not require any interference. ( 14 ) ACCORDINGLY, this application is allowed in part. The order taking cognizance so far as Section 420 is concerned is hereby quashed. The case will proceed against the petitioner for committing the offence under section 406, I. P. C. Application partly allowed. --- *** --- .