Kanhaiya Lal vs The State of Rajasthan

B.R. Arora, J.—This miscellaneous petition is directed against the order dated March 13, 1989, passed by the Munsif and Judicial Magistrate, First Class, Suratgarh, framing the charge u/s 406, I.P.C. against the petitioner.

Gopi Ram, complainant, filed a complaint u/s 420, I.P.C. against the petitioner Kanhaiya Lal, alleging therein that one truck, bearing No. RJF 3659 was the joint property of Kanhaiya Lal and one Hanuman Prasad and on June 12, 1979, the complainant made a contribution of Rs. 12,636/-and became the owner of 1/3 share in the truck. On June 13, 1980, accused Kanhaiya Lal took Rs. 20,000/- form the complainant and executed a pronote in his favour. At that time, it was, also, agreed that till the accused makes the payment of this amount, be will, not take the share in the income of the truck. It was further agreed that till the accused makes the payment of the amount of Rs. 20,000/-, he will have no right to sell the truck. An endorsement to this effect was, also, made on the back of the pronote. It was further averred in the complaint that since the truck was at Suratgarh and was being used for the transportation of goods and the complainant was residing in village Kishangarh, the truck was being kept under the care and supervision of the accused Kanhaiya Lal. It was further alleged in the complaint that on July 17, 1980, when the complainant came to Suratgarh and made inquiry from him that the truck had taken the goods to Rawatsar and would return within a day or two, but on July 23, 1980, he was informed by the other co-owner Hanuman Prasad that the accused Kanhaiya Lal had sold the truck to Lakhotiyas of Rawatsar. It was, therefore, prayed that the accused has committed an offence u/s 420, I.P.C. and a proper action may be taken against the accused and he may be adequately punished. The learned Judicial Magistrate, Suratgarh, sent this complaint to the Station House Officer, Police Station, Suratgarh, u/s 156 Cr. P.C. for investigation. A First Information Report, on the basis of this complaint, was recorded at the Police Station, Suratgarh, and the Police, after necessary investigation, presented the challan u/s 420, I.P.C. against the accused. The learned Magistrate, after considering the papers produced before him, took cognizance against the petitioner u/s 420, I.P.C. and issued process. The learned Magistrate, thereafter, on August 20, 1981, framed charges u/s 420, I.P.C. against the petitioner. Dissatisfied with the order passed by the learned Magistrate framing the charge against the accused-petitioner, the accused Kanhaiya Lal preferred a revision petition, which was decided by the learned Additional Sessions Judge, Suratgarh, who dismissed the same by his order dated November 19, 1981. Aggrieved with the order dismissing the revision petition, the petitioner preferred a petition u/s 482, Cr. P.C. before this Court, which was ultimately allowed and the charge u/s 420, I.P.C. was quashed. The Miscellaneous petition filed by the petitioner was allowed and the case was remanded to the trial Court. While remanding the case, this Court observed that the question as to whether an offence u/s 406, I.P.C. is made-out against the petitioner on the basis of the papers which have been filed alongwith the charge but have not been considered by the learned Judicial Magistrate. It will be open to the learned Magistrate to consider the said question as to whether the offence u/s 406, I.P.C. or any other offence is disclosed against the petitioner. After the remand of the case, the learned Judicial Magistrate, by his order dated July 2, 1984, framed charge u/s 406, I.P.C. against the accused. Dissatisfied with the order framing the charge u/s 406, I.P.C, the petitioner preferred a revision-petition before the learned Additional Sessions Judge, Suratgarh, who, by his order dated August 13, 1985, allowed the revision-petition filed by the petitioner and remanded the case to the learned Judicial Magistrate to proceed-with in accordance with the directions given by the High Court in its order dated July 30, 1982. The learned Judicial Magistrate, thereafter, by his order dated March 15, 1989, again framed a charge u/s 406, I.P.C. against the accused-petitioner. It is against this order that the present petition u/s 482, Cr. P.C. has been filed by the petitioner.

I have heard the learned Counsel for the petitioner and the learned Public Prosecutor as well as the learned Counsel for the respondent.

At the time of framing the charge, the inquiry of the Court is limited and the Court has to decided whether the facts emerging from the record and the documents constitute the offence with which he is charged, and at that stage, the Court is only required to evaluate the materials and documents on record with a view to find-out of the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the offence and the Court is not required to go into the details and meticulous consideration of the evidence. While framing the charge, the prosecution is duty-bound to show from the record of the case and the documents collected during the course of investigation that the facts emerging therefrom constitute the offence for which the accused has been charged.

Now, I have to see: whether from the existing materials on record the ingredients of offence u/s 406, I.P.C. have been made-out or not. The ingredients of Section 406, I.P.C. are:

(i) entrusting any person with property or with any dominion over the property;

(ii) The 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:

(a) of any direction of law prescribing the mode in which such trust is to be discharged; or

(b) of any legal contract made touching the discharge of such trust.

A case of breach of trust is both a criminal offence as well as a civil wrong. There may be certain situation where it would predominantly doing a civil wrong and may or may not amount to criminal offence and there may, also, be certain situation that it may be a criminal offence. But in the present case, the complaint was filed by the complainant for offence u/s 420, I.P.C. mentioning therein that the truck in question is a partnership properly and the accused and the complainant are the joint owners and the truck has been sold by the accused without the permission of the complainant and in contravention of the undertaking given by him regarding which a note was, also, made on the back of the pronote. The offence of criminal breach of trust can be made-out only if it can be shown that the accused- petitioner was specifically entrusted with the domain over the truck in dispute by the other co-owner of the said truck and in breach of such entrustment, he has misappropriate the money. The evidence produced by the complainant does not throw a light on this aspect of the matter, rather the evidence is lacking on this point. After going-through the evidence on record, I am of the view that the present case is the one where predominantly it amounts to a civil wrong and does not amount to a criminal offence. The facts mentioned in the complaint may constitute a civil wrong, but so far as the ingredients of the criminal offence u/s 406, I.P.C. are concerned, they are still wanting. The prosecution, from the record of the case and the documents collected during the course of investigation, filed to show that the ingredients constituting any criminal offence, for which the accused is charged, ore made-out.

The result is that this miscellaneous petition filed by the petitioner is allowed. The charge u/s 406, I.P.C, framed against the petitioner is, therefore, quashed.