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2013 DIGILAW 1291 (JHR)

Ayub Khan @ Azad Khan v. State of Jharkhand

2013-11-28

R.R.PRASAD

body2013
JUDGMENT 1. Heard learned counsel appearing for the petitioner and learned counsel appearing for the informant as well as leaned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 19.4.2012 passed by Additional Chief Judicial Magistrate, Bermo at Tenughat in Bokaro Termal P.S. Case No. 122 of 2011 whereby and whereunder the court took cognizance of the offence punishable under Sections 406 and 420 of the Indian Penal Code against the petitioner. 3. The case of the complainant, in brief, is that the petitioner did impress upon the complainant and others that he does have license for purchasing coal and therefore, if they will be advancing money, he would purchase coal and will sell it of. Out of the income coming from it, the profit would be shared among them. On such assurance being given, a sum of Rs. 8,48,506/- was given to the petitioner. The said amount was deposited before C.C.L. for purchasing 200 tons of coal and in fact, 200 tons of coal was allotted to the petitioner but on account of certain reason, the coal was not lifted and therefore, M/s. Central Coal Field Limited deposited the entire money in the account of the petitioner but the petitioner never returned the amount to the complainant and others in spite of repeated requests being made by him. 4. On such allegation, a case was lodged which was registered as Bokaro Thermal P.S. Case No. 122 of 2011 under Sections 406 and 420 of the Indian Penal Code against the petitioner. On submission of the charge sheet, cognizance of the offence punishable under Sections 406 and 420 of the Indian Penal Code was taken against the petitioner, vide order dated 19.4.2012. 5. Being aggrieved with that order, this application has been filed. 6. Mr. Rajesh Kumar, learned counsel appearing for the petitioner submits that accepting the entire allegation to be true, no offence is made out against the petitioner as the petitioner has never been alleged to have induced the complainant and others fraudulently or dishonestly to pay the money and thereby the question of committing offence either of cheating or criminal breach of trust does not arise. 7. 7. As against this, learned counsel appearing for the informant as well as learned counsel appearing for the State submits that all the ingredients for commission of the offence under Section 405 is there as the petitioner did not return the money in spite of the money given by them was returned by M/s. Central Coal Field Limited to the petitioner and thereby they can be said to have misappropriated the amount which was given to the petitioner and therefore, the offence of criminal breach of trust is certainly made out. 8. Having heard learned counsel appearing for the parties, it does appear that on the allegations mentioned hereinabove, cognizance of the offence under Sections 406 and 420 has been taken against the petitioner but keeping in view the allegation, no case is made out under Section 420 of the Indian Penal Code. 9. At this stage, I may refer to the provision as contained in Section 415 of the Indian Penal Code which reads as under:- “Cheating – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to cheat. 10. From its reading it appears that the following ingredients should necessarily be there for constituting offence of cheating:- 1. There should be fraudulent or dishonest inducement of a person by deceiving him. 2. (a) The person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property. (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. 3. In cases covered by 2(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. 11. Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. 3. In cases covered by 2(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. 11. Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating cannot be made out. 12. Here in the instant case, no allegation seems to be there that the petitioner did anything so as to come to conclusion that he had practiced deception upon the complainant, rather from the allegation, it does appear that on being promised that he would sell off coal after purchasing it from the money given by them and the profit earned would be shared the complainant and others gave money which was deposited with M/s. Central Coal Field Limited for purchasing 200 tons of coal and therefore, the petitioner cannot be said to have deceived the complainant in any manner. Accordingly, no offence is made out under Section 420 of the Indian Penal Code. 13. So far the allegation made for commission of offence of criminal breach of trust is there that appears to have been made out. The offence of criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under:- “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.” 14. 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. (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. 15. On going through the allegation made in the FIR, it does appear that on account of certain reason, when coal could not be lifted the amount which had been given by the complainant and others was returned in the account of the petitioner but the petitioner did not pay back it to the complainant and others in spite of repeated request being made and therefore, in the fact and circumstances of the case offence of criminal breach of trust prima facie seems to be attracted and therefore, the court did not commit any illegality in taking cognizance of the offence under Section 406 of the Indian penal Code. 16. So far as the order under which cognizance of the offence under Section 420 of the Indian Penal Code has been taken that part of the order is hereby set aside. 17. In the result, this application is allowed but in part. 18. Any observation made for the purpose of disposal of the case shall not be prejudiced for the parties.