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Madhya Pradesh High Court · body

2015 DIGILAW 211 (MP)

Vinod Bohare v. State of M. P.

2015-02-20

SUSHIL KUMAR GUPTA

body2015
ORDER : 1. By invoking the supervisory powers of this Court under sections 397, 401 of CrPC, the petitioner has preferred this criminal revision against the impugned order dated 2.2.2012 passed in Criminal Case No.906/2008 by Chief Judicial Magistrate, Bhind, whereby charge under section 406 of IPC has been framed against the petitioner. 2. The prosecution story, in short, is that petitioner is the Dealer of the tractors. Petitioner sold a tractor of Mahindra Company to complainant Mevalal which was also financed by the petitioner. The loan amount along with the interest Rs.3,21,000/- was to be repaid, but the complainant paid a sum of Rs.1,90,000/- in time. Thereafter, the petitioner took the tractor from the complainant forcibly before four years with cultivator and the same has not been returned till now. It is also alleged that petitioner sold the tractor to another person and committed cheating. Complainant Mevalal Kushwah sent a complaint to Superintendent of Police, Bhind, for taking legal action against the petitioner on which enquiry was conducted by the S.O. Phooph in which it was found that no offence is made out against the petitioner and there is only some money dispute between the parties. Thereafter, complainant again made a complaint on Samadhan online on which FIR has been registered against the petitioner at Crime No.72/08 under sections 420 and 406 of IPC. After registration of the FIR, investigation was conducted and after completion of investigation, charge-sheet was filed against the petitioner in the Court of Chief Judicial Magistrate, Bhind, who in turn framed the charges against the petitioner under sections 420 and 406 of IPC by order dated 5.3.2009. 3. It is undisputed that being aggrieved by the order dated 5.3.2009, whereby charges under sections 420 and 406 of IPC have been framed, Criminal Revision No.227/09 was preferred and this Court by allowing the revision, directed the learned Court below to pass a reasoned order and thereafter frame the charges if required. It is also undisputed that thereafter also charges under sections 420 and 406 of IPC have been framed against the petitioner. Against that order, petitioner again preferred criminal revision No.882/11 and this Court by allowing the revision vide order dated 17.11.2011 directed the Court below to comply with the order dated 17.3.2010 passed in Criminal Revision No.227/09. 4. It is also undisputed that thereafter also charges under sections 420 and 406 of IPC have been framed against the petitioner. Against that order, petitioner again preferred criminal revision No.882/11 and this Court by allowing the revision vide order dated 17.11.2011 directed the Court below to comply with the order dated 17.3.2010 passed in Criminal Revision No.227/09. 4. The trial Court thereafter passed the impugned order dated 2.2.2012 framing charge under section 406 of IPC against the petitioner. Against that order, this criminal revision has been preferred. 5. Learned counsel for the petitioner submitted that order passed by the Court below is illegal, perverse and bad in the eye of law and deserves to be set aside. He further submitted that tractor was financed by the petitioner and loan amount including the interest Rs.3,21,000/- was to be paid by the complainant, but the complainant paid only a sum of Rs.1,90,000/-. Thereafter, complainant offered his tractor for sale and tractor was sold by the petitioner and excess amount approximately of Rs.23,000/- was paid to the complainant. It is also submitted that a complaint was lodged at Police Station, Lahar, wherein in the investigation it was found that no offence was committed by the petitioner. Thereafter, again a complaint was lodged at Police Station, Phooph, where also it was found that no offence has been committed by the petitioner. It is further submitted that because of political pressure this case has been registered. 6. It is further submitted by learned counsel for the petitioner that all these aspects were not taken into consideration by the learned Court below. It is also submitted that there is only a civil dispute between the parties and no offence has been committed by the petitioner. It is further submitted that ingredients of offence under section 406 of IPC are not made out. In support of the argument, learned counsel for the petitioner placed reliance in S.W. Palanitkar and others v. State of Bihar and another [2002 SCC (Cri.)129], Asoke Basak v. State of Maharashtra and others [(2011)1 SCC (Cri.) 85], and Dilawar Balu Kurane v. State of Maharashtra [2002 SCC (Cri.) 310]. On these grounds, learned counsel for the petitioner prayed for setting aside the impugned order. 7. On these grounds, learned counsel for the petitioner prayed for setting aside the impugned order. 7. On the other hand, learned Public Prosecutor for the respondent/State contended that ingredients of criminal breach of trust are clearly made out in the present case and on the basis of the FIR against the petitioner learned trial Judge was fully justified to frame charge under section 406 of IPC, therefore, no case is made out for interference in the impugned order framing charge under section 406 of IPC. 8. Before coming to the factual aspect of the case, I would like to reproduce the relevant provisions of sections 405 and 406 of IPC which are 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 wilfully suffers any other person so to do, commits “criminal breach of trust”. Explanation [1] : A person, being an employer [of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation [2] : A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. 406. Punishment for criminal breach of trust. -- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 9. From the bare perusal of the aforesaid sections 405 and 406 of IPC, it is clear that for constituting an offence of criminal breach of trust, the following ingredients must be satisfied : “(a) the 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 so to do in violation, (c) 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 any legal contract which the person has made touching the discharge of such trust.” 10. It is pertinent to mention here that on the same facts of the case, charges under sections 420 and 406 of IPC were framed by the trial Court vide order dated 5.3.2009 which was challenged in Criminal Revision No.227/09 and by order dated 17.3.2010 this Court by allowing the criminal revision and setting aside the impugned order directed the learned Court below to pass a reasoned order and thereafter frame the charge, if required. But in spite of the direction of the Court, no reasoned order was passed by the trial Court and again charges under sections 420 and 406 of IPC were framed against the petitioner. But in spite of the direction of the Court, no reasoned order was passed by the trial Court and again charges under sections 420 and 406 of IPC were framed against the petitioner. That order was again challenged in Criminal Revision No.882/11 and by order dated 17.11.2011 by allowing the criminal revision and setting aside the impugned order dated 12.9.2011, this Court again directed to comply with order dated 17.3.2010 passed in Criminal Revision No.227/09. 11. By the impugned order dated 2.2.2012, although, an elaborate order has been passed framing charge under section 406 of IPC, but learned trial Court did not consider the ingredients of sections 405 and 406 of IPC. 12. The apex Court in the case of S.W.Palanitkar (supra), in para 8 has held as under : “8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil Court but a breach of trust with mens rea gives rise to a criminal prosecution as well. “ 13. In the light of sections 405 and 406 of IPC, I have to first examine whether any of the ingredient under section 406 of IPC has been made out to enable the Court to take cognizance thereof against the petitioner or not. Bare perusal of the FIR lodged by the complainant would indicate that he had purchased the tractor from the petitioner by taking loan which including the interest comes to Rs.3,21,000/- and the complainant only paid a sum of Rs.1,90,000/-. 14. For the sake of argument if it is presumed that tractor was snatched by the petitioner for non-payment of loan amount from the complainant, even then no ingredient of criminal breach of trust is made out. Although, it is true that tractor was snatched by petitioner without permission of complainant that may constitute another offence under the Penal Code but not constitute the offence under section 406 of IPC. 15. In my considered opinion, there appears no cheating or dishonest inducement for the delivery of property or breach of trust by the petitioner. Although, it is true that tractor was snatched by petitioner without permission of complainant that may constitute another offence under the Penal Code but not constitute the offence under section 406 of IPC. 15. In my considered opinion, there appears no cheating or dishonest inducement for the delivery of property or breach of trust by the petitioner. Thus, looking to the matter from all the angles, I am of the considered opinion that framing of charge against the petitioner for commission of alleged offence under section 406 of IPC would be clearly an abuse of process of law. Therefore, charge framed under section 406 of IPC by the impugned order deserves to be quashed. 16. Consequently, the revision is allowed and the impugned order dated 2.2.2012 passed in Criminal Case No.906/2008 by Chief Judicial Magistrate, Bhind framing charge under section 406 of IPC against the petitioner is hereby quashed. 17. The matter is remanded back to the trial Court to hear the learned counsel for the parties for framing of charge, if any made out, and pass a fresh order. 18. A copy of this order be sent to the trial Court for compliance. ...........