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Judgment
Heard learned counsel for the petitioner and learned
counsel for the State.
Despite valid service of notice on the opposite
party no. 2, he has chosen not to appear before the Court and
contest the matter.
This application under Section 482 of the Code
of Criminal Procedure, 1973 has been filed for quashing of the
order dated 08.03.2013 passed by the learned Sub-divisional
Judicial Magistrate, Nalanda at Biharsharif in Complaint Case No.
1371-C of 2012 whereby and whereunder the petitioners have been
summoned to face trial for the offence punishable under Section
406 / 120-B of the Indian Penal Code (for short '' IPC '').
The complainant Ashwani Kumar Nirala alleged
in the complaint that the accused persons intended to sell a piece of
land admeasuring 37 decimal under Khata No. 315, Plot No. 976 at
village Maghra. The complainant contacted the accused persons
and desired to purchase the land. After negotiation, it was finalized
that accused persons would transfer the entire land at the cost of
Rs.27,60,000/-. Out of which, a total amount of Rs.11,65,000/- was
paid to the accused persons by the complainant in installments. It is
admitted by the complainant that after receiving the part payment,
the accused persons executed two sale deeds. He has stated that on
28.03.2012, the petitioner no. 1 had executed a sale deed in favour
of complainant''s sister, namely, Indu Kumari Sinha transferring
three kathas of land and on 30.03.2012, the petitioner no. 1 further
executed a sale deed of two kathas of land in favour of mother of
the complainant but the remaining 7 kathas of land has not been
transferred despite willingness of the complainant to pay the agreed
balance amount.
It is submitted by the learned counsel for the
petitioners that even if the entire allegations made in the complaint
are taken to be true, ingredients of the offence punishable under
Section 406 / 120-B of the IPC are not attracted. He contended that
as a matter of fact, after negotiation the petitioner had paid only
Rs.11,65,000/-out of the total agreed amount of Rs.27,60,000/- and
on receipt of the part payment, the petitioner no. 1 had executed
sale deed in respect of five kathas of land in favour of the sister and
the mother of the complainant. Since the rest of the payment was
not made by the complainant, the petitioner no. 1 refused to execute
sale deed in favour of the complainant or his family members. He
submitted that in view of the law laid down by the Supreme Court
in Nageshwar Prasad Singh alias Sinha Vs. Narayan Singh &
Anr. [(1998) 5 SCC 694], Murari Lal Gupta Vs. Gopi Singh
[(2005) 13 SCC 699] and Dalip Kaur & Ors. Vs. Jagnar Singh &
Anr. [(2009) 14 SCC 696], the impugned order taking cognizance
of the offence and summoning the petitioners to face trial is bad in
law.
On the other hand, Mr. Jharkhandi Upadhyay,
learned Additional Public Prosecutor for the State submitted that in
view of the allegations made in the complaint, the ingredients of the
offence punishable under Section 406 / 120-B of the IPC are clearly
attracted.
I have heard learned counsel for the petitioners
and the State.
The first and foremost question which would
arise in the present case is that whether or not in view of the
allegations made in the complaint, the ingredients of the offences
punishable under Section 406 would be attracted.
Section 406 IPC prescribes punishment for
criminal breach of trust which is defined in Section in Section 405
of the IPC. It 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 wilfully suffers any other person so to do, commits "criminal breach of trust"."
A careful reading of Section 405 IPC would
show that a criminal breach of trust involves the following
ingredients:-
(a) a person should have been entrusted with
property, or entrusted with dominion over
property;
(b) that person dishonestly misappropriated or
converted to his own use that property, or
dishonestly used or disposed of that property or
willfully suffered any other person to do so;
(c) that such misappropriation, conversion, use or
disposal was in violation of any direction of law
prescribing the mode in which such trust was
discharged.
The gist of the offence prescribed under section
406 IPC is misappropriation done in a dishonest manner.
In the present case, looking at the allegations
levelled in the complaint, I find that no allegation is made attracting
the ingredients of Section 405 IPC. The allegation levelled in the
complaint is that the deal for the entire land was finalized between
the parties for Rs.27,60,000/-. Admittedly, the complainant had
paid only Rs.11,65,000/-. It admitted that after receiving
Rs.11,65,000/-, the petitioner no. 1 had executed two sale deeds,
one in favour of the sister of the complainant and the other in
favour of the mother of the complainant.
In exactly identical situation, in Murari Lal
Gupta Vs. Gopi Singh (Supra), a three-Judge Bench of the
Supreme Court observed as under :-
"We have perused the pleadings of the parties, the complainant and the orders of the learned Magistrate and the Sessions Judge.
Having taken into consideration all the materials made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosectu7ion under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent."
Similarly, in Dalip Kaur. Vs. Jagnar Singh
(Supra), the question for determination before the Supreme Court
was whether breach of contract of an agreement for sale would
constitute an offence under section 406 or section 420 IPC. After
examining the fact of the case and the relevant sections of the IPC,
the Supreme Court held that an offence of cheating would be
constituted when the accused has fraudulent or dishonest intention
at the time of making of promise or representation. A pure and
simple breach of contract does not constitute the offence of
cheating. It further held that if the dispute between the parties was
essentially a civil dispute resulting from a breach of contract on the
part of the appellants by non-refunding the amount of advance the
same would not constitute an offence of cheating or criminal breach
of trust.
In view of the facts noted above and the ratio
laid down by the Supreme Court in Murari Lal Gupta Vs. Gopi
Singh (Supra) and Dalip Kaur. Vs. Jagnar Singh (Supra), I am of
the considered opinion that at best, it is a pure and simple case of
civil breach of contract between the parties which would not attract
the ingredients of the offence under Section 406 / 120-B of the IPC.
In that view of the matter, the impugned order
dated 08.03.2013 passed by the learned Sub-divisional Judicial
Magistrate, Nalanda at Biharsharif in Complaint Case No. 1371-C
of 2012 is hereby quashed.
The application stands allowed.