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Jharkhand High Court · body

2013 DIGILAW 1142 (JHR)

Nirmala Devi v. State of Jharkhand

2013-10-17

R.R.PRASAD

body2013
ORDER 1. Heard learned counsel appearing for the petitioners. 2. This application has been filed for quashing of the entire criminal proceeding of Complaint Case No. 546 of 2011 including the order dated 24.1.2012 passed by the Additional Chief Judicial Magistrate, Koderma whereby and whereunder the Court after taking cognizance of the offence under Section 406 of the Indian Penal Code has issued summon against the petitioners. 3. It is the case of the complainant that the petitioners No.1 and 2 entered into an agreement with the opposite party No.2 for selling a piece of land for a consideration amount of Rs. 3,51,000/-. Out of that, a sum of Rs. 3,00,000/- was paid by the opposite party No.2 to the petitioners No.1 and 2 by way of an advance and rest amount of Rs. 51,000/- was to be paid at the time of execution of the sale-deed. 4. Further case is that in spite of receiving the said amount of Rs. 3,00,000/- petitioners No.1 and 2 did not execute sale-deed in favour of opposite party No.2 and thereby the petitioners No.1 and 2 have committed offence under Section 406 of the Indian Penal Code. 5. On such allegation, a complaint was filed which was numbered as Complaint Case No. 546 of 2011 in which cognizance of the offence punishable under Section 406 of the Indian Penal Code was taken against the petitioners, vide order dated 24.1.2012 which is under challenge. 6. Mr. Modi, learned counsel appearing for the petitioners submitted that accepting the entire allegation to be true, no offence is made out under Section 406 of the Indian Penal Code as necessary ingredients constituting offence under Section 405 are lacking. 7. It was further submitted that it is a pure case of breach of agreement for which petitioners cannot be prosecuted criminally and hence, the order taking cognizance is fit to be quashed. 8. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under:- "405. 7. It was further submitted that it is a pure case of breach of agreement for which petitioners cannot be prosecuted criminally and hence, the order taking cognizance is fit to be quashed. 8. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code 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." 9. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. (a) A person should have been entrusted with property or entrusted with dominion over property. (b) That person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so. (c) That such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. 10. In the instant case, the petitioners did not execute sale-deed in spite of receiving part of the consideration amount but there has been absolutely nothing to show that the petitioners had intention right from the beginning to come wrongful loss to the complainant-opposite party No.2 and thereby the petitioners cannot be said to have dishonestly misappropriated the amount. 11. Accordingly, I do not find it a case of criminal breach of trust rather it is a pure case of breach of agreement which could have been enforced in the competent Court of civil jurisdiction. 12. Under the circumstances, the entire criminal proceeding of Complaint Case No. 546 of 2011 including the order taking cognizance is hereby set aside. 13. In the result, this application stands allowed. Application allowed.