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Jharkhand High Court · body

2016 DIGILAW 1097 (JHR)

Md. Ainul Khan v. State of Jharkhand

2016-07-20

RAVI NATH VERMA

body2016
ORDER : 1. Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has prayed for quashing of the entire criminal proceeding including the order dated 20.07.2007 passed by Judicial Magistrate, 1st Class, Chatra in Complaint Case no. 149 of 2006, whereby and where under cognizance of offence has been taken under Section 323/406 of the Indian Penal Code. 2. The facts of the case, which is relevant for the proper appreciation of the issue involved in this case, in short, is that at the instance of complainant Santosh Kumar, the aforesaid complaint case was instituted on the allegation that the present petitioner being the Headmaster of a School entered into an oral agreement with the complainant, who is a mason, for some construction work in the said school. The petitioner had assured the complainant to make payment after completion of work but even after completion of work worth Rs.1,00,000/-including payment of labour charges, the said amount has not been paid to him. On repeated demand, the petitioner paid only Rs. 54,200/- through cheque and cash. When the complainant approached the petitioner for payment of the rest amount i.e. Rs.45,800/-, the petitioner abused and assaulted him and took his signature on blank paper on the gunpoint saying that the payment has already been made to him. Where after, this complaint was lodged. 3. It appears from the record that after recording of the statement of the complainant on solemn affirmation and after examination of other witnesses, the court below finding sufficient materials and prima facie case against the petitioner took cognizance of the offence by order dated 20.07.2007under Sections 323/406 I.P.C. Being aggrieved by the said order, the petitioner preferred this petition as indicated above. 4. Mr. Dubey learned counsel appearing for the petitioner assailing the order taking cognizance as bad in law and perverse and without application of judicial mind seriously contended that no document was produced by the complainant to show any amount due against the petitioner. It was also submitted that the petitioner being Head Master of the School is a public servant, as such sanction for prosecution was required from the authority concerned before taking cognizance of offence but the cognizance order was passed without obtaining the sanction of prosecution. It was also submitted that the petitioner being Head Master of the School is a public servant, as such sanction for prosecution was required from the authority concerned before taking cognizance of offence but the cognizance order was passed without obtaining the sanction of prosecution. It was also submitted that even if there is any dispute regarding transaction of money or mis-calculation of amount, it would still not amount to any offence as none of the ingredients responsible to constitute the offence under Section 406 I.P.C. is available and there was no criminal breach of trust or any dishonest intention on the part of the petitioner rather it involves a civil wrong in respect of which the complainant may seek his redressal or remedies in a civil court. Hence the whole prosecution against the petitioner is vitiated in law and liable to be quashed. 5. Contrary to the aforesaid submissions, the learned counsel appearing for the complainant contended that the complainant being a poor mason has been denied wages and that the petitioner being the Headmaster of the School had entered into an oral agreement for construction of the work, as such he cannot be absolved from his liability to pay the wages. 6. In a case State of A.P. Vs. Golconda Lingaswami and another; (2004) 6 SCC 522 , the Hon?ble Supreme Court while considering the scope of Section 482 of the Code held that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent power under Section 482 of the Code. The Hon?ble Supreme Court further held that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. In another case Indian Oil Corporation Vs. NEPC India Limited; (2006) 6 SCC 736 , the Hon?ble Supreme Court has summarized the principles relating to exercise of jurisdiction under Section 482 of the Code in paragraph-12 of the said judgment, which reads as follows:- “12. …….. That is the function of the trial Judge. In another case Indian Oil Corporation Vs. NEPC India Limited; (2006) 6 SCC 736 , the Hon?ble Supreme Court has summarized the principles relating to exercise of jurisdiction under Section 482 of the Code in paragraph-12 of the said judgment, which reads as follows:- “12. …….. (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. “ 7. I have carefully examined the allegations made in the complaint, the order impugned taking cognizance and the order summoning of accused and I find no allegation is made out attracting the ingredients of Section 405 of I.P.C. except the bald allegation that the accused i.e. the present petitioner did not make payment of wages to the complainant. 8. Before I enter into the veils of submissions of the learned counsels, a reference of Section 405 and 406 of I.P.C. is necessary for the proper appreciation of the issue involved in this case, which are as follows: “Section 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? .” “Section 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 bare perusal of the aforesaid provisions, it would appear that the offence of criminal breach of trust consists of four positive acts namely - misappropriation, conversion, user and disposal of property. From bare perusal of the aforesaid provisions, it would appear that the offence of criminal breach of trust consists of four positive acts namely - misappropriation, conversion, user and disposal of property. The essential ingredients of the offence of criminal breach of trust are (i) the accused must have been entrusted with property or dominion over it and (ii) the accused must have misappropriated the property or disposed of that property in violation of such trust. The mere fact that the accused did not pay the money to the complainant does not amount to criminal breach of trust. 10. In order to attract the ingredients of an offence punishable under Section 406 of I.P.C., it is not sufficient to show that money to be paid as wages has been retained by the accused. It must also be shown that the accused-petitioner was entrusted with the same and he dishonestly retained the same. The mere fact that the accused-petitioner did not pay the money to the complainant does not amount to the criminal breach of trust. So far as the cognizance of offence under Section 323 of I.P.C. is concerned, the same has not been corroborated by the witness examined by the court below during inquiry. Learned counsel representing the State has not pointed out any plausible ground to show that the court below while taking cognizance had applied his judicial mind. Apparently, the Court has not examined the allegation made in complaint petition as well as in the statement made by him during inquiry and in a mechanical manner passed the order impugned. 11. In view of the discussions made, hereinabove, even if the allegations made in the complaint taken at their face value as true, in my opinion, the basic essential ingredients of offence of criminal breach of trust are missing. I have carefully scrutinized the statement of the witnesses examined during investigation under Section 202 of the Code and the statement of the complainant on solemn affirmation and I find that none of the ingredients responsible to constitute the offence alleged for which cognizance has been taken is available in the instant case rather I find that the dispute between the parties is predominantly of a civil nature. Apparently, the complainant has made an attempt to convert a civil dispute into a criminal case. Apparently, the complainant has made an attempt to convert a civil dispute into a criminal case. Hence, I have no hesitation in holding that the order taking cognizance under Sections 323/406 of I.P.C. was totally an abuse of process of the court. 12. Accordingly, this Criminal Miscellaneous Petition is, hereby, allowed and the order taking cognizance dated 20.07.2007 and the entire criminal proceeding in connection with Complaint Case No. 149 of 2006 are, hereby, quashed. Petition allowed.