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2024 DIGILAW 336 (MP)

Suresh Jaat v. State of M. P

2024-04-08

PREM NARAYAN SINGH

body2024
ORDER With consent of the parties heard finally. 1. This criminal revision under section 397/401 of Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 6.8.2022 passed by the Tenth Additional Sessions Judge, Indore (M.P.) in S.T. No.822/2021, whereby charges under section 389, 422 and 409 of IPC, 1860 have been framed against the applicant. 2. Brief facts of the case are that on 12.11.2016 applicant was admitted in Gokuldas Hospital, Indore for having eaten some poisonous substance. He consumed poison at 4.30 pm and thereafter he informed about his consuming poison to Raj and Shailu. During investigation, police recorded statements of Shailu wherein Shailu stated that applicant told him after consuming poison that he was indebted to Nikhil Agrawal and therefore for saving himself from such recovery and for roping Nikhil Agrawal into false case, he consumed poison, but his intention was not to commit suicide. 3. The statement of the applicant was recorded on 26.11.2016 wherein he deposed that an amount of Rs.4,02,731/- is due towards Nikhil Agrawal as commission and applicant was informed by some other businessmen that they have roped Nikhil Agrawal in some false cases, thereafter, Nikhil Agrawal is not asking for the due amount from them, hence the applicant can also adopt the same way therefore, he consumed poison, to rope Nikhil Agrawal in a false case. After due investigation charge sheet was filed against the applicant for offence under section 389, 422, 406 and 409 of IPC, 1860 before Judicial Magistrate First Class, Indore. 4. Learned JMFC vide order dated 27.11.2021 discharged other accused persons Anil, Sanjay Agrawal and Sandeep Goyal from the crime for want of evidence and since offence 409 of IPC, 1860 is not triable by JMFC the case was committed to Sessions Court, Indore. After due consideration vide order dated 6.8.2022 charges were framed under sections 389, 422, 409 of IPC, 1860 against the applicant. Being aggrieved by the aforesaid order applicant has preferred the present revision petition praying for setting aside the order dated 6.8.2022, quashing the charge sheet and the consequent proceedings pending in S.T. No.822/2021. 5. Learned counsel for the petitioner submitted that allegation against the petitioner is that he did not pay brokerage amount to Nikhil Agrawal. Being aggrieved by the aforesaid order applicant has preferred the present revision petition praying for setting aside the order dated 6.8.2022, quashing the charge sheet and the consequent proceedings pending in S.T. No.822/2021. 5. Learned counsel for the petitioner submitted that allegation against the petitioner is that he did not pay brokerage amount to Nikhil Agrawal. The allegation of non payment of money strictly makes out a case of civil dispute between the parties and by no stretch of imagination a case for criminal breach of trust can be made out. The entire narrative of the respondent fails to make out as to how the applicant was in entrustment of or were having dominion over the property of Nikhil Agrawal and further as to how he dishonestly misappropriated such property or put it to his own use. 6. Learned counsel also contended that the allegation mentioned in memo of charge is not in consonance with the charges leveled and evidence produced in the final report filed by respondent. The basic ingredients for making out offences under section 409 of IPC is not made in the present case. There is no mention of entrustment of money in the final report but memo of charge under section 409 has been prepared by stating that a sum of Rs.4,02,731/- were entrusted in the ordinary course of business. The basic ingredients of offence under section 409 of IPC, 1860 is missing in the instant case. Here it is worth mentioning that in the course of arguments learned counsel for the petitioner confines his arguments as to charge of section 409 of IPC, 1860. He has submitted that the petitioner may be liable for paying amount as commission to the complainant but since he has neither been entrusted money by complainant nor he is with dominion of any property of complainant, he is not liable to be charged under section 409 of IPC, 1860. In these context the charges under ection 409 of IPC framed against the petitioner is not in accordance with law, therefore, being non sustainable, liable to be set aside. 7. Before dwelling upon the point, the definition of criminal breach of trust prescribed under section 405 of IPC is worth mentioning here:- "405. In these context the charges under ection 409 of IPC framed against the petitioner is not in accordance with law, therefore, being non sustainable, liable to be set aside. 7. Before dwelling upon the point, the definition of criminal breach of trust prescribed under section 405 of IPC is worth mentioning here:- "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 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. In view of the aforesaid definition the ingredients of offence for criminal breach of trust are as follows:- Ingredients:- The section requires - 1. Entrusting any person with property, or with any dominion over property. 2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation - (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust. 9. In this case the allegation against the applicant is only with regard to non payment of brokerage or dues. In the whole charge sheet there is no documentary proof in respect of entrustment of such brokerages or dues to the present petitioner by the complainant. It is also not the case of the prosecution that the petitioner is having with him in dominion over the complainant's property. On this aspect, the law laid down by Full Bench of Hon'ble Supreme Court in the case of The State Of Gujarat vs Jaswantlal Nathalal reported as AIR 1968 SC 700 reads as under:- 8. The term "entrusted" found in S. 405 IPC governs not only the words "with the property" immediately following it but also the words "or with any dominion over the property" occurring thereafter-see Velji Raghvaji Patel v. State of Maharashtra [1965] 2 S.C.R. 429. The term "entrusted" found in S. 405 IPC governs not only the words "with the property" immediately following it but also the words "or with any dominion over the property" occurring thereafter-see Velji Raghvaji Patel v. State of Maharashtra [1965] 2 S.C.R. 429. Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trustsee Jaswantrai Manilal Akhaney v. State of Bombay(1). T h e expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that properly is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. It is true that the government had sold the cement in question to BSS solely for the purpose of being used in connection with the construction work referred to earlier. But that circumstance does not make the transaction in question anything other than a sale. After delivery of the cement, the government had neither any right nor dominion over it. If the purchaser or his representative had failed to comply with the requirements of any law relating to cement control, he should have been prosecuted for the same. But we are unable to hold that there was any breach of trust. 10. In the case at hand as per prosecution the petitioner is liable to pay brokerage amount to complainant but it would not amount to neither entrustment nor dominion over the property. Certainly, the respondent can recover the amount by applying due procedure. However, offence under section 409 of IPC is not made out against the petitioner and the impugned order of learned trial Court with regard to framing of charge against the petitioner under section 409 of IPC is suffering from impropriety and illegality. 11. In upshot of the aforesaid discussion, the impugned order is set aside qua framing of charge against the petitioner under section 409 of IPC. 11. In upshot of the aforesaid discussion, the impugned order is set aside qua framing of charge against the petitioner under section 409 of IPC. Rest of the charges stand affirmed. 12. Consequently, the CRR is partly allowed and disposed off. 13. The matter is remanded back to the Sessions Court. The learned trial Court shall proceed with the trial for the offence punishable under section 389, 422 of IPC in consonance with the provisions of section 228 of Cr.P.C. 14. A copy of this order be sent to the learned trial Court for information. Certified copy, as per rules.