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2014 DIGILAW 338 (JHR)

Dumkeshwar Mahato v. State of Jharkhand

2014-03-04

R.R.PRASAD

body2014
ORDER : By the Court - Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite party No.2 as well as learned counsel appearing for the State. 2. The order dated 29.08.2012 passed in Sonari P.S. Case No.100 of 2011 [G.R. No.1872 of 2011] under which cognizance of the offences punishable under Sections 406 and 506 of the Indian Penal Code has been taken against the petitioners, is being sought to be quashed on the ground that accepting the entire allegation made in the complaint petition to be true, no such offences are made out. 3. It is the case of the complainant that the complainant was the rightful owner of a vehicle, namely, TATA MT TIPPER bearing Registration No.JH05R -8889 which had been purchased under the hire-purchase agreement and had been hypothecated to the financial institution. After the termination of hypothecation, agreement arrived at, in between the petitioners and the complainant whereby it was agreed that the petitioners would be plying the vehicle in day time and in the evening, the same would be parked in front of the house of the opposite party No.2. For some period, the petitioner parked the vehicle in front of the house of the opposite party No.2, but other day it was found that it has not been parked in front of the house of the opposite party No.2. When the matter was inquired into, it was found that the vehicle had been parked in front of the house of the petitioners. The complainant, having found that, asked the petitioner as to why he had parked the vehicle over there. On hearing this, the petitioner started abusing the complainant in filthy language and also held out threat by saying forget the vehicle and leave the place otherwise both of you will be done to death. 4. On such allegation, the complaint was lodged which was sent before the Police Station under Section 156(3) Cr.P.C. for its institution and investigation. After completion of the investigation, charge-sheet was submitted, upon which cognizance of the offence punishable under Sections 406 and 506 of the Indian Penal Code has been taken against the petitioners. That is under challenge in this petition. 5. Mr. After completion of the investigation, charge-sheet was submitted, upon which cognizance of the offence punishable under Sections 406 and 506 of the Indian Penal Code has been taken against the petitioners. That is under challenge in this petition. 5. Mr. Sahani, learned counsel appearing for the petitioners submits that whatever dispute was there, that is civil in nature and it does not have any criminal element and, therefore, the court committed illegality in taking cognizance of the offences and, therefore, the order taking cognizance is fit to be quashed. 6. As against this, learned counsel appearing for the opposite party No.2 submits that from bare perusal of the statement made in the complaint petition, it would appear that the TATA MT TIPPER, vehicle, in question had been entrusted with the petitioners with certain terms and conditions which has not only been violated but the petitioners by taking the same in their possession, can be said to have misappropriated and thereby, the court never committed illegality in taking cognizance of the offence. 7. Keeping in view the allegation which had been made in the complaint petition, I do find substance in the submission advanced on behalf of the opposite party No.2. The offence of criminal breach of trust had been defined in Section 405 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”. 8. 8. 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.” 9. The same proposition seems to have been laid down by the Hon'ble Supreme Court in the case of “R.Venkatkrishnan” (supra) as referred to on behalf of O.P. No. 2, wherein Their Lordships' have also taken notice of the ratio laid down in a case of “Onkar Nath Mishra -versus- State (NCT of Delhi) [ (2008) 2 SCC 561 ]” wherein Their Lordships have held as follows:- “In the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of obligation in relation to the property over which dominion or control as acquired by the accused. The second is of misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.” 10. In the background of the allegations made in the complaint, the ingredients necessary for constituting offence of criminal breach of trust, seems to have been fulfilled and thereby, the court has not committed any illegality in taking cognizance of the offence. 11. Accordingly, the order taking cognizance never warrants to be quashed and hence, this petition stands dismissed. 12. Notwithstanding the petition got dismissed, the petitioners would be at liberty to take other pleas which are available to him during trial i.e. at an appropriate stage. At the same time, any observation made for the purpose of disposal of the case, it not be prejudiced. Petition dismissed.