Allahabad High Court
Smt. Archana Gupta And Ors. vs The State Of U.P And Anr. on 18 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 308
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 4 Case :- U/S 482/378/407 No. - 2801 of 2012 Applicant :- Smt. Archana Gupta And Ors. Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Arun Sinha,Riyaz Ahmad Counsel for Opposite Party :- Govt. Advocate,Vinay Kumar Singh Hon'ble Sudhir Agarwal,J.
1. Sri Arun Sinha, Advocate for the applicants is present. None appeared on behalf of opposite party 2 though name of Sri Vinay Kumar Singh, Advocate, is shown in cause list as counsel for opposite party. Hence I proceed to decide the application after hearing learned counsel for applicants and learned A.G.A.
2. Opposite party 2 Complainant Babu Lal Gaur filed an application under Section 156(3) Cr.P.C., which has been treated as complaint and after recording statements of complainant and witnesses under Sections 200 and 202 Cr.P.C., Magistrate has summoned applicants for trial under Sections 406, 420 IPC vide order dated 29.02.2012.
3. It is contended that perusal of complaint shows that if allegations made in the complaint are taken to be correct, yet no offence under Sections 406, 420 IPC is made out.
4. The complaint filed by complainant-opposite party 2 reads as under :
^^1- ;g fd izkFkhZ mijksDr irs dk LFkkbZ fuoklh gS]tks Jheku th ds {ks=kf/kdkj esa vkrk gSA 2- ;g fd mijksDr foi{khx.k esllZ fjyk;Ul dE;qfuds'kUl ds fy, Bsdsnkjh dk dke djrs gSA mijksDr foi{khx.kksa us izkFkhZ dks esllZ esllZ ,0oh0vkbZ0 daLVªD'kUl dEiuh] ,&17] vkLFkk dqat] lkÅFk flVh] jk;cjsyh jksM] Fkkuk eksguykyxat] y[kuÅ ds fy, lc dkUVªSDV ds :i esa dke djus dk vkWQj fn;kA 3- ;g fd izkFkhZ us mijksDr foi{khx.kksa dk vkWQj Lohdkj dj fy;k rFkk fnukad 16@03@2008 ls 16@06@2008 rd ds fy, izkFkhZ dks Hkwfexr dsfcy fcNkus dk dke feykA izkFkhZ us mijksDr dke esa yxHkx :0 5]50]000@&¼iakp yk[k ipkl gtkj :i;k½ yxk;kA 4- ;g fd izkFkhZ us viuk dke le; ij iwjk dj fn;k rFkk viuh fjiksVZ foi{khx.kksa dks lkSai nhA foi{khx.k izkFkhZ ds dk;Z ls larq"V o [kq'k FksA 5- ;g fd tc izkFkhZ us vius isesUV dh ekax dh] rks foi{khx.kksa }kjk crk;k x;k fd izkFkhZ fjyk;Ul dE;wfuds'kUl easa iSLkk ugha feyk gSA tc fey tk;sxk] rc vidh isesUV dj nsaxsA 6- ;g fd bl rjg foi{khx.k izkFkhZ dks yxkrkj Vgykrs jgsA izkFkhZ }kjk :i;k ekaxus ij izkFkhZ ij uktk;t ncko cukus yxsA izkFkhZ dks ckn esa ;g Hkh Kkr gqvk fd foi{khx.kksa dks esllZ fjyk;Ul dE;wfuds'ku ls cdk;k isesUV izkIr gks pqdk gSA 7- ;g fd izkFkhZ }kjk ckj&ckj viuk :i;k ekaxus ij foi{khx.kksa us izkFkhZ dks psd ua0 224449] fnukafdr 10@12@08 :i;k 1]99]000@& ,p0Mh0,Q0lh0 cSad in ns; Fkk] izkFkhZ dks fn;kA izkFkhZ us tc mls vius ,dkmaV esa yxk;k] rks og psd ÞbulfQfl;sUV QaMß fy[kdj okil vk x;hA 8- ;g fd tc izkFkhZ og psd ysdj foi{khx.kksa ds ikl x;k] rks foi{khx.kksa us dgk fd vki ,d nwljk psd ys yhft;sA izkFkhZ dks tc nwljk psd ua0 224450 fnukafdr 11@06@09 :0 4]50]000@& ,p0Mh0,Q0lh0 cSad ij ns; Fkk] fn;k x;kA tc izkFkhZ us og psd vius ,dkmaV esa yxk;k] rks og psd ,dkmaV can fy[kdj okil vk x;kA foi{khx.kksa us tkucw>dj] /kks[kk nsus dh fu;r ls] Ny diV iwoZd] ,dkmaV Dykst dh psd nh] tks ckmal gksdj okil vk x;hA 9- ;g fd izkFkhZ dks foi{khx.k ckj&ckj /kks[kk nsrs jgs rFkk izkFkhZ dk iSlk okil ugha fd;kA izkFkhZ dks blds ckn nks psds ua0 752922 fnukafdr 26@06@11 :0 4]50]000@& ,l0ch0vkbZ0] y[kuÅ ,oa psd ua0 752923 fnukafdr 26@06@11 :0 13]500@& ,l0ch0vkbZ0 y[kuÅ ij dk fn;k x;kA 10- ;g fd mijksDr nksuksa psds Hkh cSad esa yxkrs gh ÞbulfQfl;sUV QaMß fy[kdj okil vk x;hA 11- ;g fd izkFkhZ dks ekywe gqvk fd mijksDr foi{khx.kksa ds f[kykQ Fkkuk eksguykyxat esa Jh izohu ckxM+s us eq0v0la0 287@11 /kkjk 406@506 esa izFke lwpuk fjiksVZ ntZ djk j[kh gS] izkFkhZ tc viuh fjiksVZ fy[kkus x;k] rks Fkkuk& eksguykyxat }kjk izkFkhZ dh fjiksVZ ugha fy[kh x;hA 12- ;g fd Fkkuk&eksguykyxat }kjk dksbZ dk;Zokgh u fd;s tkus ij izkFkhZ }kjk mDr ?kVuk ds lEcU/k esa fnukad 26@07@2011 dks izkFkZuk i= iathd`r Mkd }kjk Jheku~ iqfyl v/kh{kd egksn;] y[kuÅ dks Hkh Hksth x;h gS] ftl ij Hkh vHkh rd dksbZ dk;Zokgh ugha dh x;h gSA izkFkZuk i= ,oa jftLVªh jlhn dh Nk;kizfr ekuuh; egksn; ds le{k lqyHk voyksdukFkZ gsrq layXud la[;k 1] layXu gSA 13- ;g fd izkFkhZ ds mDr iathd`r izkFkZUkk&i=ksa ij Hkh tc dksbZ ugha dh x;h] rc izkFkhZ }kjk foo'k gksdj U;k;k ikus ds mn~ns'; ls mijksDr izkFkZUkk i= ekuuh; egksn; ds le{k lafLFkr dj jgk gSA 14- ;g fd vfHk;qDrx.k cgqr gh ncax ,oa igqap okys O;fDr gSA ;fn vfHk;qDrx.kksa ds f[kykQ vfoyEc dksbZ dk;Zokgh ugha dh x;h] rks vfHk;qwDrx.k lkft'k jp djds izkFkhZ ,oa mlds ifjokj okyksa dks fdlh >wBs eqdnesa esa Hkh Qalok ldrs gSa rFkk tku ls Hkh ejok ldrs gSaA 15- ;g fd mDr ?kVUkk Jheku~ dh LFkkuh; vf/kdkfjrk okyh lhekvksa esa ?kfVr gqbZ gS] blfy;s mDr vijk/k dh tkap ,oa fopkj.k djokus dk iw.kZ vf/kdkj Jheku~ th dks izkIr gSA 16- ;g fd mijksDr ifjfLFkfr;ksa] rF;ksa ,oa dkj.kksa dks n`f"Vxr j[krs gq, vUrxZr /kkjk 156¼3½ n0iz0la0 ds izkfo/kkuksa ds vUrxZr okn iathd`r fd;s tkus ,oa foospuk fd;s tkus dk vkns'k@funsZ'k izHkkjh fujh{kd Fkkuk d`".kkuxj] tuin&y[kuÅ dks fn;k tkuk U;k;fgr esa furkUr vko';d o U;k; laxr gS vU;Fkk izkFkhZ U;k; ikus ls oafpr jg tk;sxkA izkFkZuk vr% lEekuh; U;k;ky; ls ;kpuk gS fd U;k;fgr esa izkFkZuk i= esa of.kZr rF;ksa] dkj.kksa ,oa yxs lk{;ksa ds vk/kkj ij Fkkuk/;{k eksguykyxat dks funsZf'kr djsa] fd og izkFkhZ dh izFke lwpuk fjiksVZ vafdr dj foospuk ds ifj.kke ls ekuuh; U;k;ky; dks lwfpr fd;s tkus dk vkns'k ikfjr djus dh d`ik djsaA^^ "1. That the applicant is permanent resident of aforementioned address which falls within your jurisdiction.
2. That the aforesaid opposite parties are engaged as contractor for M/s Reliance Communications. The aforesaid opposite parties had offered to work as a sub-contract for M/s A.V.I. Constructions Company, A-17, Aastha Kunj, South City, Raibareli Road, Police Station - Mohanlal Ganj, Lucknow.
3. That the applicant has accepted the offer of aforesaid opposite parties and got the work of laying underground cable from 16/03/2008 to 16/06/2008. The applicant had invested about Rs. 5,50,000/- (Rupees Five Lacs and Fifty Thousand) in the aforesaid work.
4. That the applicant completed his work in time and handed over his report to the opposite parties. The opposite parties were satisfied and happy with the work of applicant.
5. That when the applicant raised demand for payment, it had been told by the opposite parties that they had not received money form Reliance Communications and they would make pay him after receiving it.
6. That in this manner the opposite parties kept on equivocating the applicant continuously. When the applicant asked for money, the began to mount undue pressure on the applicant. Later on the applicant got to know that the opposite parties had received the left over payment from M/s Reliance Communications.
7. That when the applicant repeatedly demanded his money, the opposite parties gave Cheque No. 224449 dated 10/12/08 Rupees 1,99,000/- payable at H.D.F.C. Bank to the applicant. When the applicant deposited this cheque in his account, the same had returned with "Insufficient Fund" endorsed on it.
8. When the applicant went to the opposite parties with that cheque, the opposite parties asked him to take another cheque. The applicant had been given the other cheque bearing number 224450 dated 11/06/2009 Rupees 4,50,000/- payable at H.D.F.C. Bank. When the applicant deposited this cheque in his account, the cheque was returned with "account closed" endorsed on it. The opposite parties with an intention to commit cheating, fraudulently gave a cheque of closed account which got dishonoured and returned.
9. That the opposite parties kept on cheating the applicant repeatedly and did not return the money of applicant. Thereafter, the applicant had been given two cheques bearing No. 752922 dated 26/06/11 Rupees 4,50,000/- S.B.I. Lucknow and No. 752923 dated 26/06/11 Rupees 13,500/- S.B.I. Lucknow.
10. That as soon as both the aforesaid cheques had been deposited in the bank, it returned with "Insufficient Fund" endorsed on it.
11. That the applicant came to know that Shri Pravin Bagde had lodged the First Information Report against the aforesaid opposite parties in Case Crime No. 287/11 under Section 406/506. When the applicant went to lodge the report, the report of the applicant had not been lodged by Police Station Mohanlalganj.
12. That when Police Station Mohanlalganj had not taken any action, the applicant has sent application dated 26/07/2011 regarding the said incident through Registered Post to the Superintendent of Police, Lucknow. Still, no action has been taken on it. The photocopies of application and receipt of the Registered Post is annexed as Annexure No. 1 for your kind perusal.
13. That when no action has been taken on the said registered letters of the applicant, then being compelled and with an object to get justice, the applicant is instituting the aforesaid application before you.
14. That the accused persons are very dominating and sourceful persons. If no action is taken up promptly against the accused persons, the accused persons may conspire and even implicate the applicant or his family membersin any false case or get them even killed.
15. That the said incident has occurred within your local jurisdiction, therefore you have full authority to get conducted the investigation and trial of the said offence.
16. That having regard to the aforesaid circumstances, facts and causes, it is essential and just in the interest of justice to register the case under the provisions of Section 156 (3) Cr.P.C. and to issue the order/ direction to In-charge Inspector Police Staion Krishna Nagar, District Lucknow to conduct the investigation or else the applicant shall be deprived from getting justice.
Prayer Therefore it is urged to the learned Court that in the interest of justice, on the basis of described facts, causes and annexed evidences, directions may be issued to Police Station Mohanlalganj to lodge the First Information Report of the applicant, and an order may please be passed to apprise the outcome of the investigation to the learned Court."
(English Translation by Court)
5. Section 420 is "cheating" which is defined in Section 415 and both these provisions read as under:
"415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
6. In order to attract allegations of "cheating", following things must exist:
(i) The person deceived, delivered to someone or consented that certain person shall retain property.
(ii) Person deceived was induced by accused to do as above.
(iii) Such person acted upon such inducement and consequently was deceived by the accused.
(iv) Accused acted fraudulently or dishonestly.
(v) Accused did it intentionally.
(vi) such act or omission caused or likely to cause damage or harm to that person in body, mind, property or reputation.
(Emphasis added)
7. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
8. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
9. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
10. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
11. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
12. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
13. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest." (Emphasis added)
14. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
15. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
16. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
17. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
18. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
19. Looking to allegation made in complaint and in the light of exposition of law in respect of Section 420 IPC, as discussed above, I find that in the present case there is no allegation of dishonest inducement on the part of applicants. The basic ingredients of Section 420 read with 415 IPC i.e. dishonest inducement to person so deceived to deliver any property is clearly absent.
20. Once necessary ingredient is absent, offence under the said provision cannot be made out. In R.K. Vijayasarathy and others vs. Sudha Seetharam and others 2019(3) SCALE 563, in similar circumstances, Supreme Court, in para 18 said :
"The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17 February 2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out."
(emphasis added)
21. For constituting offence under Section 420 IPC, it has to be a Cheating and dishonest inducement for delivery of property. Cheating is defined in Section 415 IPC and ingredient, I have already discussed above, are not available in the case in hand. In fact complaint basically refers to offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "Act, 1881") but Complainant having failed to act in accordance with requirement of Section 138 of Act, 1881 and was not in a position to lodge a complaint under the said provision, has implicated applicants under Sections 406, 420 IPC though from contents of complaint, ingredients of aforesaid provision are not satisfied at all. In the circumstances, proceedings against Accused-applicants under Section 420 IPC is illegal and gross abuse of process of law.
22. Similarly, Section 406 I.P.C. also I do not find is attracted in the case in hand. It talks of punishment for "criminal breach of trust" which is defined in Section 405 I.P.C. and both these provisions read 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".
Explanation 1.-- A person, being an employer of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.-- A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid."
"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."
23. In order to attract allegation of "criminal breach of trust", following things must exist :
i. Accused was entrusted with some property.
ii. Accused had dominion over certain property.
iii. Accused (i) misappropriated, (ii) converted to his own use, (iii) used or disposed off that property or wilfully suffered any person to dispose off that property.
iv. Accused did in violation of (i) any direction of law, (ii) any legal contract express or implied relating to carrying out the trust.
v. He did so dishonestly.
24. "Criminal breach of trust" talks of entrustment of property and dishonest misappropriation or conversion thereof for own use or dishonest use or disposal of property in violation of any direction of law prescribing mode in which property in which such trust is to be discharged, or of any legal contract by a person who has contravened the said provision.
25. Complaint in the present case shows that there was dues payable by Accused-applicants to Complainant in respect whereof a cheque was issued by Accused-applicants being Cheque No.224449 dated 10.12.2008 for Rs.1,99,000/- payable at HDFC Bank but when it was submitted for collection, the same was dishonoured on the ground of 'insufficient fund'. Complainant again went to Accused-applicants, who issued another Cheque No.224450 dated 11.06.2009 for Rs.4,50,000/- payable at HDFC Bank but this was returned on the ground that account has been closed. There is no averment in the complaint that thereafter any demand was made by giving any notice, as provided under Section 138 of Act, 1881 and compliance thereof was made. Instead, Complainant has filed above complaint for trial under Section 406/506 IPC but Magistrate, after recording evidence under Sections 200 and 202 Cr.P.C., has summoned applicants under Sections 406, 420 IPC.
26. Section 406 IPC deals with offence of criminal breach of trust which is defined in Section 405 IPC. The first requirement of Section 406 IPC is 'entrustment of property' by victim to Accused but there is no such entrustment. As per complaint, dues payable by Accused-Applicants according to averments made by Complainant satisfy liability as 'debt' but cannot be treated to be entrustment of property by Complainant to Accused persons and when there is no entrustment, question of dishonest misappropriation or conversion of such property to own use by such persons does not arise. Even Explanation 1 and 2 of Section 405 IPC are not attracted in the case in hand since there is no deduction of wages by employer for deposit in concern fund under Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and Employees' State Insurance Act, 1948. Therefore, Section 406 is not at all attracted.
27. In view of discussions made hereinabove and considering the allegations contained in the complaint in the case in hand, in the light of above authorities, proceedings are liable to be quashed.
28. The application is allowed. Criminal proceedings in Complaint Case No. 2688 of 2011, Babu Lal Gaur vs. Smt. Archana Gupta and others, under Sections 406 and 420 IPC, pending in the Court of Special Chief Judicial Magistrate (Custom), Lucknow are hereby quashed.
Order Date :- 18.2.2020 KA