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2009 DIGILAW 41 (CAL)

Farid Mallik v. STATE OF WEST BENGAL

2009-01-29

ARUNABHA BASU

body2009
Judgment :- (1) The revisional application under Section 482 of the Code of Criminal Procedure is directed to quash proceeding in connection with Case No. 155 of 2005 arising out of Contai Police Station Case No. 66 of 2005 under Sections 406/471/468/420 of the Indian Penal Code, now pending before the Court of learned Additional Chief Judicial Magistrate, Contai. (2) It appears from the documents filed along with the application, that police officer after conducting investigation submitted charge sheet against the petitioners herein for commission of offence punishable under Section 406 of the Indian Penal Code. The First Information Report in this case was lodged by one Inspector, DIO-III, Contai, on the basis of allegation of execution of power of attorney in favour of the petitioner herein by the Opposite Party No. 2. The said power of attorney was executed by the O.P. No. 2 in favour of the petitioner herein, in view of the relationship between the petitioner with the Opposite Party No. 2. Under the said power of attorney a copy of which is annexed along with the revisional application, petitioner herein was entrusted over certain immovable properties of the O.P. No. 2. The said property was mortgaged by the petitioner with the Cooperative Bank while raising loan of Rs. 80,000/-, the amount could not be repaid and the matter is now pending with the Cooperative Tribunal. (3) The short question that arises is whether in respect of immovable property, an offence of criminal breach of trust punishable under Section 406 of the. Indian Penal Code can at all be substantiated. (4) Learned Advocate for the petitioner submitted that the petitioner herein was empowered to deal with the property, which is detailed in the schedule of the poewr of attorney. In terms of clause 6 of the aforesaid power of attorney, he was empowered to lease or to mortgage or to hypothecate or to transfer in any way for any term or terms of years upon such condition as the petitioner may think fit and proper. (5) So, even if the property was given in mortgage while raising loan from the bank, the same was authorised in terms of the clear provisions of the power of attorney. As such the petitioner cannot be said to have committed any offence within the meaning of Section 406 of the Indian Penal Code. (5) So, even if the property was given in mortgage while raising loan from the bank, the same was authorised in terms of the clear provisions of the power of attorney. As such the petitioner cannot be said to have committed any offence within the meaning of Section 406 of the Indian Penal Code. (6) It is further contended that after the death of the wife of the petitioner, the criminal case was instituted only to harass the petitioner and as such the further continuation of the said proceeding will be an abuse of the process of Court. (7) In support of his contention learned Advocate for the petitioner relied on the decision of the Division Bench of this Court in Jugdown Sinha v. Queen-Empress reported in MANU /WB /0140/1895 corresponding to (1896) ILR 23 Cal 372. In this case the Honble Supreme Court held as follows : "2. We are ourselves inclined to the opinion that the property referred to in Section 405 of the Indian Penal Code must, as in Section 403, be moveable property, and that, as it has been ruled in Reg. V. Girdhar Dharamdas 6 Bom. H.C. Cr. 33, criminal breach of trust cannot be committed in respect of immoveable property........................" (8) Similar view was expressed by learned Single Judge of M.P. High Court in Dhuljiv. Kanchan reported in MANU/MP/0013/1955 corresponding to 1956 Cr LJ 224. (9) From the decisions as referred to above, it is clear that immovable property cannot be a subject matter of criminal breach of trust. But in this case the mortgage of the immovable property is the subject matter of offence and as such, in my view, the entire proceeding against the petitioner is not maintainable. (10) On consideration of the entire matter and following the decisions of this Court in Jugdown Sinha v. Queen-Empress (supra), I am of the view that the further continuation of the proceeding will be an abuse of the process of Court. (11) The revisional application is disposed of with the direction that the above mentioned proceeding pending before the learned Court below stands quashed so far as the petitioner is concerned. (12) There shall be no order as to costs. (11) The revisional application is disposed of with the direction that the above mentioned proceeding pending before the learned Court below stands quashed so far as the petitioner is concerned. (12) There shall be no order as to costs. (13) Criminal Section is directed to forward a copy of the order to the learned Court below, (14) Criminal Section is further directed to supply urgent Photostat copy of the order to the learned Advocate for the petitioner as and when applied for. (15) Case Diary be returned.