Madhya Pradesh High Court
Ashok Singh Yadav vs The State Of Madhya Pradesh on 28 April, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
The High Court Of Madhya Pradesh
Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava
MCRC No. 35854 of 2021
Ashok Singh Yadav and Others
Vs.
State of MP and Another
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Shri Prashant Sharma, counsel for the petitioners.
Shri Nitin Goyal, Panel Lawyer for the respondent No.1/State.
Shri Ankur Maheshwari, counsel for the respondent No.2/
complainant.
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Reserved on 25/04/2022
Whether approved for reporting ..../.......
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ORDER
(Passed on 28/04/2022) Per Rajeev Kumar Shrivastava, J:-
Invoking inherent powers of this Court u/S 482 of Criminal Procedure Code (in short ''the Code'') present petition has been preferred by petitioners, seeking quashment of FIR registered at Crime No.223/2020 by Police Station Bilaua, District Gwalior for offence under Section 406 of IPC.
(2) Factual matrix of case is that complainant Charul Arora (herein respondent No.2) lodged a report on 18-11-2020 at around 06:30 pm at Police Station Bilaua alleging therein that in the year 2009 he had started a business in partnership with petitioner No.1 Ashok Singh and place of business was Village Rafatpur, near Bilaua. There were eight partners in the Firm out of which four were family members of the complainant and the remaining were family members of petitioner No.1 Ashok Singh.2
During partnership, both partners had equally invested their money in business and purchased properties in the name of Shri Govardhan Crushing Construction Company (in short ''Firm'') viz. Quarry of 0.75 hectare, 4 bigha land, Entire unit 28Y36 crusher, Two L & T Machines, Two L & T machine breaker Kits, one Hindustan Loader, Two Leyland dumpers, One 380 KVA generator, One 50KVA generator, One Weighing Machine, One TATA Safari, Two Welding Plants, Two Motorcycles and One Computer along with Office furniture. It is alleged that from 2009-2012, business of both partners ran in good condition because of their good faith but after 2012, said family members of complainant started other business and on giving assurance by Ashok Singh, the complainant did not visit the site so that the complainant handed over all properties of Firm to Ashok Singh and his family members. When after handing over the same, the complainant asked about account of Firm, Ashok Singh made corners by not giving account of Firm. Meanwhile, Ashok Singh and his family members did not pay a single penny of business to complainant. On 18-11-2020, when complainant came to his Firm at Rafatpur, Bilaua and enquired about the entire account of Firm, then Ashok Singh and his other partners denied him to give account of Firm. It is alleged that Ashok Singh and his other family members grabbed and disposed of entire assets and machinery of Firm and none of amounts has been deposited in the account of partnership Firm and aforesaid persons (petitioners) have not given even a single penny of profit of business from 2012 to 2020 and they have misappropriated fraudulently and dishonestly the entire amount of Firm and the petitioners are not returning amount of business to the complainant. On that account, the impugned FIR has been registered.
(3) It is the say of learned counsel for the petitioners that 3 allegations levelled in impugned FIR are merely oral in nature as there is no documentary evidence. It is further contended that a mining lease of 0.750 hectare of land has been granted in favour of Ashok Singh and four bigh of land is in his name in the light of diversion order passed by SDO. It is further contended that payment regarding crusher unit as well as assets and machinery of Firm in question have been made by petitioners vide Annexures Ex.P5 to Ex.P7. The complainant has only made bald allegations against petitioners of committing offence u/S 406 of IPC. Initially, an enquiry was conducted by police and it was found that the dispute is purely civil in nature, copy of which is Annexure P9. Since the ingredient of Section 405 of IPC is lacking, therefore, prima facie no case is made out against the petitioners for commission of offence u/S 406 of IPC. The impugned FIR lodged is nothing, but is a clear process of abuse of process of Court and the same is unsustainable in the eyes of law. In the complaint, there is no specific averment regarding what amount was invested in the partnership firm and what amount as alleged, have been misappropriated by petitioners. Therefore, only omnibus allegations have been made by complainant of committing misappropriation of properties of Firm. Even otherwise, failure to return the properties on the part of accused does not amount to criminal breach of trust. If the contents of FIR are taken at their face value and accepted in its entirety, the same does not prima facie constitute any offence against petitioners. Hence, it is prayed that the impugned FIR deserves to be quashed. In support of contention, learned Counsel for the petitioners has relied upon the judgment of Hon'ble Apex Court in the case of State of Haryana vs. Ch. Bhajan Lal (1992 Supp (1) 335).
(4) Per contra, learned State Counsel as well as counsel for Complainant opposed the petition and submitted that if the 4 contents of FIR are accepted in its entirety, then prima facie an offence of criminal breach of trust is made out against petitioners. Hence, prayed for dismissal of this petition.
(5) Heard learned counsel for the parties.
(6) This Court is only concerned with the questions whether averments made in the complaint/FIR taken at their face value make out ingredients of criminal offence or not and whether allegations made in the complaint/FIR when taken on their face value, are true and constitute an offence as defined under Section 406 of IPC.
(7) Section 405 of IPC deals with criminal breach of trust. A careful reading of Section 405 of IPC shows 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 should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.'' (8) Section 406 of IPC prescribes punishment for criminal breach of trust as defined in Section 405 IPC. For the offence punishable under Section 406 of IPC, prosecution must prove: (i) that the accused was entrusted with property or with dominion over it; and (ii) that he (a) misappropriated it, or (b) converted it to his own use, or (c) used it, or (d) disposed of it.
(9) The gist of offence is misappropriation done in a dishonest manner. There are two distinct parts of the said offence. The first involves the fact of entrustment, wherein an obligation arises in 5 relation to the property over which dominion or control is acquired. The second part deals with misappropriation which should be contrary to the terms of the obligation which is created.
The word ''entrustment ''in the said Section 405 of IPC is very important. Unless there is ''entrustment'', there can be no offence under the said Section as held by Hon'ble Apex Court in Ramaswami Nadar vs. State of Madras AIR 1958 SC 56 & Binod Kumar vs. State of Bihar, (2014) 10 SCC 663.
(10) So far as powers exercised u/S 482 of Code for quashment of FIR/complaint at initial stage is concerned, the Hon'ble Apex Court in the matter of Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 has held as under:-
"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
(11) Similarly, in the matter of Bhajan Lal (supra), the Hon'ble Supreme Court has laid down following grounds to be considered by High Court while exercising power u/S 482 of the Code for quashing FIR/complaint:-
''(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their 6 entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'' (12) On perusal of impugned FIR itself, it is apparent that the same was registered for commission of offence u/S 406 of IPC.
As discussed above, offence under Section 406 of IPC constitutes when ingredients of Section 405 of IPC are fulfilled. In the case at hand, there was no entrustment of properties, rather petitioners 7 have claimed that they are ownership of relevant properties. First and foremost ingredient of Section 405 of IPC is that a person should have been entrusted with property, or entrusted with dominion over property and second mandatory ingredient is that a person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so. The aforesaid two mandatory ingredients are lacking in the present case. As it is undisputed that there was a partnership Firm between petitioners and the complainant and in case, if any of the partners seeks any grievance, then he/she can avail remedy under the Indian Partnership Act.
(13) The next contention of counsel for petitioners that all liabilities were borne by the petitioners with regard to relevant payments.
(14) Furthermore, the third ingredient of Section 405 of IPC is also missing in the present case. The dispute between the parties appears to be civil in nature, which can be resolved under the Indian Partnership Act.
(15) As no criminal liability is fastened on the part of the petitioners, therefore, petition filed by petitioners u/S 482 of the Code deserves to be and is allowed. As a consequence thereof, FIR registered at Crime No.223/2020 by Police Station Bilaua, District Gwalior for offence under Section 406 of IPC is hereby quashed.
Let a copy of this order be sent to the concerning Police Station for information and compliance.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by MAHENDRA BARIK Date: 2022.04.30 13:20:55 +05'30'