Jharkhand High Court
Manoj Kumar Chandra Alias Manoj Kumar ... vs State Of Jharkhand And Anr on 7 August, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Miscellaneous Petition No. 1273 of 2013
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Manoj Kumar Chandra @ Manoj Kumar Agrawal @
Manoj Kumar S/o Late Bhola Prasad Agrawal,
resident of Prasad General Store Building, Harmu
Bazar Chowk, PO Harmu Housing Colony, PS Argora
Town and District Ranchi-834002 (Jharkhand)... ... Petitioner
Versus
1.The State of Jharkhand
2.Mr. Balchand Sao S/o Late Suraj Sao resident of Shivaji Lane
Kishoreganj, Harmu Road, PS Sukhdeo Nagar, Town &
District Ranchi -834001 (Jharkhand)... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. R. S. Mazumdar, Senior Advocate
For the Opposite Party No. 2 : Mr. Sanjay Kumar, Advocate
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6/07.08.2016Heard Mr. R. S. Mazumdar, learned senior counsel for the petitioner and Mr. Sanjay Kumar, learned counsel for the opposite party no. 2.
2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Complaint Case No. 1051 of 2011 including the order dated 20.09.2012 passed by the learned Chief Judicial Magistrate, Ranchi whereby and whereunder cognizance has been taken for the offence punishable under Section 406 of the I.P.C.
3. A complaint case was instituted in which it was stated that the complainant had started business of grocery item with the petitioner in the year 1997. The capital was provided by the complainant who was a sleeping partner. The profit and loss was to be apportioned in the ratio of 50:50. It is alleged that the petitioner had started cheating after some time, as a result of which the complainant withdrew himself from the partnership in the year 2007. The complainant had demanded his money and after the calculation was made, the petitioner agreed to pay Rs. 29,41,125/- and a hand note was given on 14.02.2008 with a promise to return the amount within 15.08.2008. However, since the petitioner failed to repay the amount, an agreement was once again entered into on 26.06.2010, but even then no payment was made. It is alleged that a legal notice was sent wherein the petitioner had allegedly refused to pay the agreed amount.
-2-Subsequently the complainant and his witnesses had gone to the house of the petitioner, where they were assaulted and misbehaved with. On the basis of the aforesaid allegations, complaint case no. 1051 of 2011 was instituted. After conducting an inquiry by examining the complainant on solemn affirmation as well as his witnesses, cognizance was taken by the learned Chief Judicial Magistrate, Ranchi under Section 406 of I.P.C.
4. It has been stated by Mr. R. S. Mazumdar, learned senior counsel for the petitioner that the opposite party no. 2 was also carrying on a partnership business with the elder sister-in-law and younger brother of the petitioner of wholesale medicine. It has been stated that the opposite party no. 2 had resigned from the said partnership firm and had settled his accounts as per the deed of dissolution. Learned senior counsel has submitted that the petitioner had taken a loan in the year 2002 from the opposite party no. 2 which with interest had grown to Rs. 29 lacs and since the petitioner was not in a position to refund the amount, he had registered some lands in the name of the opposite party no. 2 through 2 sale deeds. It has been stated that after registration of the land, it was agreed that Rs. 39 lacs shall be returned by the petitioner on 15.02.2010 and the opposite party no. 2 shall reconvey the land in the name of the petitioner or his nominee. It was also agreed upon that if the petitioner failed to repay the amount by 15.02.2010, interest will be paid upon the said amount. Learned senior counsel submits that however in spite of the petitioner willing to return back the dues to the opposite party no. 2, but the land was never reconveyed, for which a legal notice was issued on behalf of the petitioner. Learned senior counsel further submits that the opposite party no. 2 is basically an unlicensed money lender. It has been stated that the entire dispute is with respect to the partnership business and since there is no element of criminal breach of trust present in the allegations levelled in the complaint and the dispute being predominantly civil in nature, the entire criminal proceeding as against the petitioner deserves to be quashed and set aside.
5. Mr. Sanjay Kumar, learned counsel for the opposite party no. 2 has submitted that in spite of repeated assurances, the amount which was taken by the petitioner from the opposite party no. 2 was never -3- repaid leading to institution of the complaint case. Learned counsel submits that taking a loan and not returning back the same in spite of repeated assurances makes out a case of criminal breach of trust punishable under Section 406 of I.P.C. In support of his contention, learned counsel has referred to the judgment in the case of "Medchl Chemicals & Pharma (P) Ltd. Vs. Biological E. Ltd. & Others"
reported in (2000) 3 SCC 269 as well as in the case of "Iridium India Telecom Ltd. Vs. Motorola Incorporated and Others" reported in (2011) 1 SCC 74.
6. What can be culled out from the facts of the case as well as the arguments advanced by the learned counsel for the respective parties is that the entire dispute started after initiation of the partnership business between the petitioner and the opposite party no. 2. Agreements were executed between the petitioner and the opposite party no. 2 and certain terms and conditions were put forward with respect to the amount if returned which will lead to re-conveying the land in favour of the petitioner as a quid pro quo. It further seems that the opposite party no. 3 was also involved in the business of wholesale medicines which was being carried on in partnership with elder sister- in-law and younger brother of the petitioner and subsequently by virtue of the deed of dissolution, the opposite party no. 2 opted out from the said partnership business after settlement of his account. In order to come to a conclusion as to whether the act of the petitioner would invite an offence of criminal breach of trust, it would be necessary to refer to Section 405 of the I.P.C. which 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".
7. Entrustment contemplate the creation of a relationship whereby the owner of the property makes it out over to another person to be -4- retained by him until a certain contingency arises or to be disposed of by him or on happening of a certain event. Where payment of money amounts to entrustment or merely to payment to price in advance is a question which will depend upon the facts of the case. Section 405 of I.P.C. does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship by which the owner of the property makes it over to another person to be retained by him. The question whether there was any entrustment of property would depend upon the actual facts of the case and not merely upon the legal terms employed by the parties. If the real nature of transaction is near the fact that the parties in writing are calling it trust would not attract the offence of the criminal breach of trust.
8. Admittedly, after the partnership business between the petitioner and the opposite party no. 2 failed, a loan was taken from the opposite party no. 2 which with interest had considerably grown and the petitioner had executed 2 sale deeds in the name of the opposite party no. 2 in lieu of the loan along with the interest accruing thereto. The contention of the learned senior counsel for the petitioner with respect to the registration of the sale deed have not been disputed by the opposite party no. 2 as no counter affidavit has been filed by the opposite party no. 2. The said fact would therefore be an evidence impeccable in character and can be looked into. Therefore, it can be deduced that in discharge of the loan amount which was taken by the petitioner from the opposite party no. 2, the sale deeds were executed and since the opposite party no. 2 did not re-convey the lands in question in spite of the assertion of the petitioner of repayment of the amount, legal notice was also given to the opposite party no. 2 by the petitioner. The circumstances enumerated above do reveal that the allegations do not constitute an offence of criminal breach of trust and is predominantly civil in nature. In the case of "Medchl Chemicals & Pharma (P) Ltd. Vs. Biological E. Ltd. & Others" (supra) referred to by the learned counsel for the opposite party no. 2, the same reveals that if a prima-facie case is made out disclosing the ingredients of offence alleged against the accused, the court should not quash the complaint. It has been held that the approach of the court should be circumspect, cautious and careful. In the case of "Iridium India -5- Telecom Ltd. Vs. Motorola Incorporated and Others" (supra), it was held that deception must necessarily produce inducement to part with or deliver property which the complainant would not have parted with or delivered, but for inducement resulting from the deception. While relying upon the aforesaid judgment, learned counsel for the opposite party no. 2 has submitted that there was inducement on the part of the petitioner which resulted at the initial stage in entering into a partnership business and thereafter on his inducement loan was given, but the same was never returned and therefore it can be held to be a deception on the part of the petitioner leading to breach of trust which the opposite party no. 2 had put on the petitioner.
9. The facts and circumstances of the case do not lead to a conclusion that it would a deception on the part of the petitioner as admittedly loan was taken and in discharge of the loan 2 sale deeds were registered and subsequent to the same legal notice was issued by the petitioner to the opposite party no. 2 with respect to re- conveying the land for which the sale deeds were registered. Thus it cannot be said that on account of taking a loan, there was a deception on the part of the petitioner as he had offered to discharge his liabilities in a bona-fide manner by registering 2 sale deeds in favour of the opposite party no. 2 and in such circumstances therefore, no criminal breach of trust is made out against the petitioner.
10. It is therefore, concluded that since no case under Section 406 of I.P.C. is made out against the petitioner, continuation of the criminal proceeding would be an abuse of the process of the court and would lead to a miscarriage of justice.
11. In view of what has been stated above, this application is allowed and the entire criminal proceeding in connection with Complaint Case No. 1051 of 2011 including the order dated 20.09.2012 passed by the learned Chief Judicial Magistrate, Ranchi is hereby quashed.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3