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2012 DIGILAW 999 (PAT)

Rajeeb Ranjan Kumar v. State of Bihar

2012-07-20

ASHWANI KUMAR SINGH

body2012
ORDER The petitioner being a named accused in Agam Kuan P.S. Case No. 210 of 2011 dated 10.8.2011 registered under Section 406 of the Indian Penal Code prays for quashing the F.I.R. on the ground that the allegations made in the written report submitted by respondent no. 4 (Executive Engineer, Bihar Rajya Jal Parishad, Ganga Project Division No. 5, S.T.P., Patna) on 13.7.2011 to the Officer-in-Charge, Agam Kuan Police Station, Patna, on the basis of which, the F.I.R. has been instituted, on the face of it, do not disclose commission of any cognizable offence. 2. It is alleged in the F.I.R. that in course of auction the pond situated within the premises of the Bihar Rajya Jal Parishad, Ganga Pariyojna, Division No. 5, Pahari, Agam Kuan, Patna, was settled in favour of the petitioner for the period 17.7.2007 to 16.7.2010 and 50% of the amount, i.e., Rs. 4, 51,000/- (four lakhs fifty one thousand) had to be deposited by the petitioner, but the petitioner did not do so. Hence, the Managing Director, Bihar Rajya Jal Parishad, Patna directed the informant to immediately institute an F.I.R. against the petitioner so that the amount due from him may be realized without any delay. On the basis of aforesaid allegation, the F.I.R. in question was instituted and investigation was taken up. 3. Mr. Arvind Kumar Tiwary, learned counsel for the petitioner, submits that it would be apparent from the written report submitted by the informant that the criminal prosecution has been launched against the petitioner in order to recover 50% of the bid amount which is said to be due against him. He submits that even if the contents of the F.I.R. are taken to be true at their face value and accepted in their entirety no offence is made out against the petitioner. 4. A counter affidavit has been filed on behalf of the respondent no. 5 (Officer Incharge, Agam Kuan Police Station, Patna), in which, it is stated that on the basis of information received from the informant, the case has been registered and the investigation of the case is going on. 5. Respondents no. 2 to 4 have filed a separate counter affidavit, in which, it is stated that the F.I.R. in question has been filed against the petitioner for breach of contract. 5. Respondents no. 2 to 4 have filed a separate counter affidavit, in which, it is stated that the F.I.R. in question has been filed against the petitioner for breach of contract. It has further been contended that with respect to the pond in question an auction was held on 17.7.2007 in which the petitioner turned out to be the highest bidder and as such the settlement was made with him for a total amount of Rs. 9,02,000/-. As per terms of the auction, 50% of the amount, i.e., Rs. 4,51,000/- (four lakh fifty one thousand) was deposited by the petitioner on 17.7.2007 itself and an agreement was executed between the parties but the petitioner failed to pay the balance money to the tune of Rs. 4,51,000/- due to be paid by him. It has further been stated that the balance amount had to be deposited by the petitioner in two equal instalments of Rs. 2,25,500/- each on or before 30.4.2008 and 30.4.2009 respectively but in spite of repeated assurance given by the petitioner, he failed to deposit the amount due against him. 6. Mr. Rajesh Singh, G.P.-16, learned counsel, appearing on behalf of the State, submits that the allegation made in the F.I.R. discloses commission of a cognizable offence punishable under Section 406 of the Indian Penal Code and the case is at the stage of investigation. He submits that the credibility or otherwise of the defence can not be looked into at this stage. It is for the investigating agency to submit a report to the Magistrate after full and complete investigation. 7. Mr. Indrajeet Singh, learned counsel, appearing on behalf of the respondent no. 2 to 4, has also made identical submissions. He also submits that repeatedly the petitioner assured to deposit the balance amount but failed to honour his commitment. 8. I have carefully considered the rival submissions made on behalf of the parties. There is no dispute with the proposition of law that at the stage of investigation the plausible defence of the accused is not to be seen. It is the allegation appearing in the F.I.R. which is to be seen by the Court where the question for consideration is as to whether the F.I.R. should be quashed or not. There is no dispute with the proposition of law that at the stage of investigation the plausible defence of the accused is not to be seen. It is the allegation appearing in the F.I.R. which is to be seen by the Court where the question for consideration is as to whether the F.I.R. should be quashed or not. It can be quashed only under the circumstance where the allegations, even if, taken at their face value and accepted in their entirety do not constitute the offence alleged. 9. In R. Kalyani Vs. Janak C. Mehta and Others, since reported in (2009) 1 SCC 516, in paragraph 15 the Apex Court has held as under:– “15. Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue”. 10. Thus, what is to be seen by this Court is as to whether the allegations made in the F.I.R. in question disclose commission of a cognizable offence or not. 11. Section 406 of the Indian Penal Code under which the F.I.R. in question has been registered prescribes the punishment for the offence of criminal breach of trust. 12. Section 405 of the Indian Penal Code defines criminal breach of trust, which reads as under:– “405. 11. Section 406 of the Indian Penal Code under which the F.I.R. in question has been registered prescribes the punishment for the offence of criminal breach of trust. 12. Section 405 of the Indian Penal Code defines criminal breach of trust, which reads as under:– “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 willfully suffers any other person so to do, commits “criminal breach of trust”. 13. The element of dishonest intention is, therefore, an essential element to constitute an offence of criminal breach of trust. So far as the aspect of dishonest intention is concerned, the term ‘dishonestly’ is defined by Section 24 of the Indian Penal Code which reads as under:– 24. “Dishonestly”.–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”. 14. The term ‘wrongful gain’ is defined in Section 23 of the Indian Penal Code, which reads as follows:– 23. “Wrongful gain”.–“Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled.” 15. The most essential ingredient of criminal breach of trust is, therefore, misappropriation with a dishonest intention. Breach of trust simpliciter is not an offence as it is not associated with an intention which is dishonest. The term ‘dishonestly’ defined under Section 24 of the Indian Penal Code means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. 16. In Hotline Teletubes & Components Ltd. & Others Vs. State of Bihar & Another, since reported in (2005) 10 SCC 261 , the Apex Court in paragraph 2 held as under:– “2. This appeal by special leave has been filed by the appellants against the order passed by the Patna High Court, refusing to quash their prosecution under Sections 406 and 420 of the Indian Penal Code (for short “IPC”). This appeal by special leave has been filed by the appellants against the order passed by the Patna High Court, refusing to quash their prosecution under Sections 406 and 420 of the Indian Penal Code (for short “IPC”). In the complaint petition, it has been alleged that the complainant supplied goods to the accused persons, but they failed to pay the price therefore. There is no whisper in the complaint that at the very inception of the contract between the parties, there was any intention to cheat. It appears from a bare perusal of the complaint that it is a case of purely civil liability and no criminal offence is disclosed, much less offences either under Section 406 or 420 IPC. So far as the High Court is concerned, it has not considered this aspect of the matter, but has refused to quash the prosecution observing that it was a fit case where parties should take steps for settlement. In our view, allowing such prosecution to continue would amount to an abuse of the process of court and to prevent the same, it would be just and expedient to quash the same.” 17. In Dalip Kaur and Others vs. Jagnar Singh and Another, since reported in (2009) 14 SCC 696 , the Apex Court in paragraph 10 held as under:– “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code.” 18. In the background of the facts and law laid down by the Apex Court, if I look to the F.I.R. in question, I find that the same has been instituted only with the purpose to recover an amount which is alleged to be due against the petitioner. In the background of the facts and law laid down by the Apex Court, if I look to the F.I.R. in question, I find that the same has been instituted only with the purpose to recover an amount which is alleged to be due against the petitioner. There is no whisper in the F.I.R. that there was any act of inducement on the part of the petitioner or he had any intention to cheat from the very inception. The admitted position is that he participated in an auction held by the respondents for settlement of a pond. The respondents settled the pond in favour of the petitioner, as he was the highest bidder. He deposited 50% of the total bid amount but failed to deposit the balance amount due against him. Such being the position, in my view, the allegations made in the F.I.R. do not constitute cognizable offence. The allegations, at best, make out a case of breach of trust simpliciter. There is no whisper in the F.I.R. that the breach of trust committed by the petitioner was with an ingredient of mens rea. An act of breach of trust simpliciter involves a civil wrong of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea give rise to a criminal prosecution as well. 19. Having regard to all the circumstances, particularly that the matter is purely of a civil nature and the allegations made in the F.I.R. do not disclose commission of any cognizable offence, in my view, the F.I.R. is liable to be quashed. 20. For the reasons assigned, hereinabove, the F.I.R. of Agam Kuan P.S. Case No. 210 of 2011 dated 10.8.2011 is quashed. The writ petition is allowed.