Abdul Razak Dar & Others vs State Of J&K

Sanjay Dhar, J

CRMC No.374/2018

1) The petitioners have challenged FIR No.124/2018 for offences under Section 420, 406 RPC registered with Police Station, Sumbal.

2) It appears that complainant Gh. Hassan Sheikh had lodged a written report with the police alleging therein that about three years back he had offered to marry his daughter with petitioner No.2, who, after considering the proposal, accepted the same. It was further alleged that the engagement between the daughter of the complainant and petitioner No.2 took place and even the date of marriage was also fixed. It was further alleged that the complainant has spent a lot of money in making arrangements for proposed marriage but when the date of the marriage approached, the complainant was informed by petitioner No.1 that petitioner No.2 is not ready for the marriage. It was further alleged that the petitioners in connivance with each other, caused financial loss as well as loss to the reputation of the complainant. On the basis of these allegations, the impugned FIR came to be registered.

3) The petitioners have challenged the impugned FIR, primarily, on the ground that the contents thereof do not disclose commission of any offence against them.

3) I have heard learned counsel for the parties and perused the material on record.

4) The impugned FIR has been registered for offences under Section 406, 420 RPC. In order to test the merits of the contention raised by the petitioners, it would be necessary to determine as to whether ingredients of offences under Section 420, 406 RPC are disclosed from the contents of the impugned FIR.

5) In order to attract the ingredients of Section 420, there has to an element of cheating on the part of the accused. Cheating has been defined in Section 415 RPC. To constitute offence under Section 420, there must be a fraudulent or dishonest inducement on the part of a person and thereby the other party must have parted with his property. To establish an offence under Section 420 RPC, it has to be shown that there was a fraudulent and dishonest intention at the time of commission of the offence and that the person practising deceit had obtained the property by fraudulent inducement and willful representation.

6) “Dishonestly” has been defined in Section 24 of RPC to mean deliberate intention to cause wrongful gain or wrongful loss and when, with such intention, deception is practised and delivery of property is induced, then the offence under Section 420 RPC can be said to have been committed.

7) So far as offence under Section 406 RPC is concerned, it provides punishment for criminal breach of trust committed. Criminal breach of trust has been defined in Section 405 of RPC, 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) From a perusal of the aforesaid provision, it is clear that it entails misappropriation or conversion of another’s property for one’s own use with a dishonest intention.

9) Let us now analyze the contents of the impugned FIR in the light of the ingredients of the offences under Section 420/406 RPC, as have been discussed hereinbefore. As already noticed, to constitute an offence of cheating, the person who has been cheated must have been made to part with his property by fraudulent or dishonest inducement on the part of the accused person. In the instant case, the complainant has nowhere alleged that he has parted with any property or he has been made to deliver any property to the accused persons. Thus, the allegations made in the impugned FIR do not disclose commission of offence under Section 420 RPC.

10) That takes us to the question whether offence under Section 406 RPC is made out from the allegations made in the impugned FIR. As already noted, the offence of criminal breach of trust entails misappropriation or conversion of another’s property for one’s own use with a dishonest intention. The complainant has nowhere alleged in the impugned FIR that the accused persons have either misappropriate his property or converted his property to their own use with a dishonest intention. In fact, there is no allegation in the impugned FIR that delivery of any property has taken place from the complainant to the accused. Thus, a bare perusal of the impugned FIR does not disclose commission of offence under Section 406 RPC as well.

11) It is a well settled law that if the contents of the FIR/complaint do not disclose commission of any offence, the same is liable to be quashed. In the instant case, a bare perusal of the impugned FIR do not disclose commission of any offence, as such, continuance of criminal proceedings against the petitioners on the basis of the impugned FIR would amount to abuse of process of law. Thus, this is a fit case where this Court should exercise its powers under Section 482 of Cr. P. C to quash the impugned FIR and the proceedings emanating therefrom.

12) Accordingly, the petition is allowed and the impugned FIR and the proceedings emanating therefrom are quashed.

CRMC No.378/2018

Through the medium of this petition, the petitioners have challenged order dated 12.09.2018, passed by learned Principal Sessions Judge, Bandipora, whereby, while granting anticipatory bail to the petitioners, the learned Sessions Judge has restricted the same to the offences carrying punishment upto five years.

Since the FIR in which the petitioners are seeking bail, stands quashed, as such, the instant petition has been rendered infructuous. The same is disposed of accordingly.