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Allahabad High Court · body

2014 DIGILAW 835 (ALL)

RAJA ABHUSHAN BRAHMA SHAH v. STATE OF U. P.

2014-03-11

MANOJ MISRA

body2014
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the applicants; Sri H.K. Yadav for the opposite party No. 2; and the learned A.G.A. for the State. By the present application, the applicants have sought quashing of the proceedings of Complaint Case No. 2802 of 2010, pending in the Court of Chief Judicial Magistrate, Sonebhadra, under Section 406 I.P.C., P.S. Robertsganj, District Sonebhadra. 2. A perusal of the record reveals that the opposite party No. 2 filed complaint against the applicants alleging therein that the complainant, who is engaged in the business of taking groves on rent from tenure holders for plucking and selling fruits, on 4.3.2010, met the applicant No. 1 with a proposal to take his grove for the aforesaid purpose. On complainant’s request, the applicant No. 1 offered, on rent, a grove situated at Mushare Tola, Mauja Rajpur having 24 trees of mango and 6 trees of jack fruit for Rs. 19,000/-. It is alleged that the complainant paid Rs. 8,000/- that day itself and the balance amount of Rs. 11,000/- on 17.3.2010 and obtained receipt. It has been alleged that, subsequently, on 12.5.2010, the villagers approached the complainant with various documents claiming title over the grove and prevented the complainant from exercising his right to pluck the fruits. Thereafter, the complainant approached the applicant No. 1, who refused to return the money. With the aforesaid allegations, the complainant sought prosecution of the applicants for offences punishable under Sections 406 and 420 I.P.C. 3. In support of the complaint, the complainant got his statement recorded under Section 200 CrPC wherein he reiterated the complaint allegations. Statements of two other witnesses namely, Vijendra and Ashok were recorded as CW1 and CW2. In his statement, Vijendra reiterated the complaint version and, upon query by the learned Magistrate, stated that he is not in a position to disclose either the plot number or the area of the grove. He further stated that he could not notice the name of the tenure holder recorded in the Khasra/Khatauni. In his statement, he also stated that the receipt was executed by applicant No. 1’s Karinda (employee), who is the applicant No. 2 herein, whereas the applicant No. 1 negotiated the deal with the complainant. The statement of Ashok, who has been examined as C.W.-2, is similar to that of the complainant. 4. In his statement, he also stated that the receipt was executed by applicant No. 1’s Karinda (employee), who is the applicant No. 2 herein, whereas the applicant No. 1 negotiated the deal with the complainant. The statement of Ashok, who has been examined as C.W.-2, is similar to that of the complainant. 4. The Court below, vide its order dated 20.9.2011, summoned the applicants, under Section 406 I.P.C. and observed that no other offence was made out against the applicants. 5. The submission of the learned counsel for the applicants is that an offence punishable under Section 406 I.P.C. is not made out, inasmuch as, there was no entrustment of any property or goods by the complainant to the accused i.e. the applicants. The money that was, allegedly, paid by the complainant to the applicants was by way of consideration for the right to pluck fruits of the grove. Such payment cannot be said to be an entrustment of any money or property with the accused. Moreover, if the agreement stood frustrated, on intervention of third party act, it would not amount to a breach of trust by the applicant vis-a-vis the complainant. It has, thus, been submitted that the Court below committed manifest error of law by summoning the applicants for an offence punishable under Section 406 I.P.C. So far the offence punishable under Section 420 I.P.C. is concerned, it was submitted that even the Court below did not find sufficient material on record so as to draw proceedings against the applicants for that offence, inasmuch as, for an offence of cheating, there has to be a false and dishonest representation at the time of entering into the agreement. It has been submitted that in the entire complaint and the statement made in support thereof there is nothing to show that the accused with a dishonest intention made a false representation to the complainant about ownership of the grove. It has been submitted that CW1 (Vijendra), who was examined under Section 202 Cr.P.C., had stated that he had not seen the Khasra /Khatauni and that he was also not aware of the plot number of the grove. It has been submitted that CW1 (Vijendra), who was examined under Section 202 Cr.P.C., had stated that he had not seen the Khasra /Khatauni and that he was also not aware of the plot number of the grove. It was thus submitted that the Court below was, therefore, justified in not summoning the applicants for an offence punishable under Section 420 I.P.C. It was submitted that the complaint and the statements in support thereof do not disclose commission of any offence by the applicants and, therefore, the complaint as also the consequential proceedings are liable to be quashed. 6. In addition to above, the learned counsel for the applicants submitted that the applicant No. 1 is the owner of grove including various other plots of land in the village concerned, however, because of ceiling proceedings there has been some dispute with other villagers. 7. In reply to the aforesaid submissions, the learned counsel for the opposite party No. 2 submitted that from the complaint allegations it is clearly established that the complainant had advanced a sum of Rs. 19,000/- to the accused for the purpose of taking grove on rent for plucking fruits, but as the complainant could not get the benefits of plucking the fruits due to intervention of fellow villagers, the applicants were under obligation to return the money and as they had not returned the money, the applicants were guilty of an offence of criminal breach of trust and, in any case, of cheating. 8. Having heard the submissions of learned counsel for the parties, before assessing whether an offence punishable under Section 406 IPC is made out or not it would be useful to first examine as to what are the necessary ingredients of the said offence. 8. Having heard the submissions of learned counsel for the parties, before assessing whether an offence punishable under Section 406 IPC is made out or not it would be useful to first examine as to what are the necessary ingredients of the said offence. The Apex Court, in the case of S.K. Alagh v. State of U.P., (2008) 5 SCC 662 , observed that to draw proceedings against a person under Section 406 IPC, it has to be, prima facie, established that: “(1) a person should have been entrusted with property, or entrusted with dominion over property; (2) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (3) that such misappropriation, conversion, use or disposal should be in violation of any direction of law 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. In the instant case, there is no entrustment of any goods or property by the complainant to the accused. The alleged payment of Rs. 19,000/- made by the complainant to the accused is by way of consideration for having the right to pluck the fruits of the grove. Such payment, by way of consideration, cannot be said to be an entrustment of the money to the accused, inasmuch as, the accused, admittedly, gave complainant the privilege, as desired by him, of plucking the fruits and nothing more was to be done by the accused under the agreement. Thus, no offence punishable under Section 406 IPC is made out. 10. With regards to the offence of cheating, suffice it to say that there is nothing in the complaint or in the statement made in support thereof to disclose that the accused made a deliberately false statement at the time of entering into the contract that the grove belonged to him when it was owned by someone else. For an offence of cheating the dishonest intention must be shown to exist at the time of entering into the contract. In the instant case, it appears that there was some dispute with regards to ownership consequent to ceiling proceedings. For an offence of cheating the dishonest intention must be shown to exist at the time of entering into the contract. In the instant case, it appears that there was some dispute with regards to ownership consequent to ceiling proceedings. Even otherwise, it has not come on record as to which particular plot was given by the accused which was, otherwise, not recorded in the name of the accused. Moreover, the Court below itself did not find sufficient ground to proceed against the applicants for an offence punishable under Section 420 I.P.C. Accordingly, this Court is of the view that no offence of cheating is made out from the complaint allegations. For the reasons recorded above, this Court concludes that the dispute between the complainant and the applicants is of a civil nature and the necessary ingredients to launch prosecution against the applicants are not disclosed by the complaint and the material in support thereof. The application is, accordingly, allowed. The complaint and the consequential proceedings of Complaint Case No. 2802 of 2010, under Section 406 I.P.C., pending in the Court of Chief Judicial Magistrate, Sonebhadra, are hereby quashed. —————