Rajasthan High Court - Jaipur
Parveen Kumar And Ors. vs State And Anr. on 24 November, 1997
Equivalent citations: I(1999)DMC212, 1998(2)WLC612
JUDGMENT Amaresh Kumar Singh, J.
1. Heard the learned Counsel for the petitioner, the Public Prosecutor and the learned Counsel for non-petitioner No. 2.
2. By this petition under Section 482, Cr.P.C. the petitioner has challenged the order dated 1st October, 1991 by which the learned Munsif and Judicial Magistrate, Karanpur took cognizance of the offence Under Section 406, IPC on the basis of the final report submitted by the police in connection with FIR No. 34/1990 of Police Station, Sri Kesarisinghpur.
3. A perusal of the record of the lower Court shows that on 20th March, 1990 non-petitioner No. 2 Smt. Parveen @ Pooran Lata filed a complaint before the learned Munsif and Judicial Magistrate, Karanpur against three persons, namely, Praveen Kumar (petitioner), Bal Kishan and Swaran Lata alleging the commission of offences Under Section 409A and 406, IPC. According to the averments made in the complaint filed by the non-petitioner No. 2, the marriage of non-petitioner No. 2 with the petitioner Praveen Kumar was solemnized on 29th January, 1984 at Village Kesarisinghpur. After the marriage the non-petitioner No. 2 went to the house of the petitioner, lived with him as his wife and gave birth to two sons Sonu and Gagandeep. For few years after the marriage, the non-petitioner No. 2 was given a proper treatment, but later on demands were made from her for bringing a television from her father's house. The non-petitioner No. 2 was turned out of the house by the petitioner about two months before the birth of her second son. It was also alleged in the complaint that the father as well as the maternal uncle of non-petitioner No. 2 went to the house of the petitioner and persuaded him to give proper treatment to the non-petitioner No. 2. The petitioner, according to allegations made in the complaint did not make any improvement in his behaviour toward the non-petitioner No. 2. He continued to beat her along with Bal Kishan and Swaran Lata. The non-petitioner No. 2 was not given food and she was subjected to such cruel treatment as might have been induced her to commit suicide. It was also stated in the complaint that at the time of marriage some golden ornaments and household goods were given to the non-petitioner No. 2 as gift and they were entrusted to the petitioner and her father and mother. It was also alleged that the petitioner as well as in-laws of the non-petitioner No. 2 failed to return the goods, which were in their custody. A prayer was made by the non-petitioner No. 2 in her complaint that action should be initiated against Praveen Kumar, Bal Kishan and Swaran Lata for having committed the offence Under Section 498A, IPC.
4. The complaint filed by Smt. Pooran Lata (non-petitioner No. 2) was sent to the police for investigation under Sub-section (3) of Section 156, Cr.P.C. and in compliance of that order the police registered the First Information Report No. 34/ 1990.
5. During the investigation, affidavits of Balraj s/o Chunnilal, Praveen @ Pooran Lata w/o Praveen Kumar and Bal Kishan s/o Mehar Chandra as well as the deed of compromise purporting to have been signed by Praveen @ Pooran Lata, Praveen Kumar, Bal Kishan, Hari Kishan, Balraj and ors. was submitted before the Investigating Officer. In her affidavit the non-petitioner No. 2 Pooran Lata mentioned that a compromise had been effected between her and her husband and in-laws. It was further stated in para No. 2 of the affidavit that she had received all the goods mentioned in the First Information Report and that she does not want any action to be taken in the matter.
6. In view of the averments made in the aforesaid document, the police submitted a final report in the matter.
7. When the final report was being considered by the learned Munsif and Judicial Magistrate, Karanpur, it was submitted before him by the Counsel for the non-petitioner No. 2 that the offence Under Section 406, IPC had been completed soon after the service of the notice demanding the return of goods mentioned in the First Information Report and since the offence had been committed at that point of time, subsequent compromise effected on 9th July, 1990 could not take away the criminality of the act and the learned Munsif and Judicial Magistrate was of the opinion that the argument carried weight and the compromise filed before the police during investigation was not sufficient to justify the filing of the final report. He, therefore, took cognizance of the offence Under Section 406, IPC.
8. After considering the facts of the case, I am of the opinion that the Munsif and Judicial Magistrate has not correctly interpreted the provisions of Section 406, IPC.
9. Section 406, IPC reads :
"Punishment for criminal breach of trust-- whoever commits criminal breach of trust shall be punished with three years, or with fine, or with both."
10. Criminal breach of trust has been defined in Section 405, IPC which reads :
"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 for 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 employee's contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by Employees' Insurance Act, 1948, shall be deemed to have been entrusted with the amount of 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."
11. A bare perusal of Section 405, IPC shows that in order an offence of criminal breach of trust may be said to have been committed, it must be shown that the alleged offender was entrusted with property or with any dominion over property and that he dishonestly misappropriated or converted to his own use that property, or he dishonestly used or disposed 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.
12. It shows mat in addition to entrustment of the property in favour of the accused, it must be shown that the accused has dishonestly misappropriated the property or converted that property to his own use or dealt with the property in the manner prescribed in Section 405, IPC. Mere refusal to return the property, which was entrusted to him does not satisfy the requirements of Section 405, IPC. Failure to return the property, may be occasioned on acount of several reasons. A person, who is called upon to return the property, which was entrusted to him may not receive the notice requiring him to return the property or for reasons beyond control, he may not be in a position to return the property by actually carrying it to the person, who entrusted it. In any case mere failure to return the property does not constitute an offence of criminal breach of trust Under Section 405, IPC. It is a quite different matter. If from the act of not returning the property, it is inferred that the person to whom the property was entrusted is unable to return the property, because he has misappropriated it or that he is unable to return it, because he is converting the property for his own use in a dishonest manner. The offence Under Section 405, IPC is therefore, committed when the property which was entrusted to the accused was actually misappropriated or dishonestly converted for his own use or is otherwise deal t with in the manner indicated by Section 405, IPC. The date on which the notice for return of the property was served his little relevance so far as the point of time of commission of the offence Under Section 405, IPC is concerned. The learned Munsif and Judicial Magistrate was, therefore, not justified in coming to the conclusion that the offence of criminal breach of trust Under Section 405, IPC was committed on a date which was five days prior to 20th March, 1990.
13. So far as the affidavits are concerned, the affidavits contain two facts. The first is that the parties have reconciled the differences and to that extent the affidavit is the evidence of a compromise arrived at by the parties. The second part of the affidavit of the non-petitioner No. 2 in addition contains an admission to the effect that she has received the property mentioned in the First Information Report. If this admission is true then it would inevitably mean that the property which was mentioned in the First Information Report was not dishonestly misappropriated within the meaning of Section 405, IPC. That admission goes to the root of the matter and shows that in fact no offence Under Section 406, IPC had been committed.
14. For the reasons mentioned above, I am of the opinion that in view of the admission contained in the affidavit of non-petitioner No. 2 that she had received the property mentioned in the First Information Report, the Investigating Officer was justified in coming to the conclusion that no offence under Section 406, IPC had been committed and if the learned Munsif and Judicial Magistrate would have properly interpreted the provisions of Section 405, IPC, he would have come to the same conclusion.
15. For the reasons mentioned above, it must be said that learned Munsif and Judicial Magistrate, Karanpur was not justified in taking cognizance of the alleged offence Under Section 406, IPC and the initiation of proceedings against the petitioner by him are not justified nor their continuance would be in the interest of justice. Therefore, it is a fit case in which this Court should exercise its powers under Section 482, Cr.P.C. Consequently, the order dated 1st October, 1991 passed by the learned Munsif and Judicial Magistrate, Karanpur is hereby quashed and set aside and the proceedings which were initiated in pursuance of that order are hereby dropped.
The petition is disposed of accordingly.