Madhya Pradesh High Court
Dr.K.K.Tamrakar vs Dr. Shri Singh Vinay Yadav on 8 February, 2018
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Miscellaneous Criminal Case No.157/2005
Dr.K.K.Tamrakar....................................................Petitioner
Versus
Dr.Shri Vinay Singh Yadu and another...............Respondents
For the petitioner : Mr. Sanjay Ram Tamrakar, Advocate.
For Respondent : Mr Mukesh Shukla, Advocate.
no.1
For Respondent : Mr.Sharad Sharma, Government
no. 2 Advocate
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Present: HON'BLE MR. JUSTICE ATUL SREEDHARAN
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ORDER
(8.2.2018) The present petition has filed by the petitioner herein for quashing the order dated 16.12.2004 passed by the Court of the learned Judicial Magistrate First Class, Damoh, in Complaint Case No.1644/2004 whereby, upon the complaint filed by the respondent no.1, cognizance of offences under section 120-B read with sections 166 and 406 of the IPC was taken against the petitioner and the co-accused persons. The case against the petitioner has arisen on the basis of a complaint preferred by the respondent no.1 on 2 12.7.2004 under section 200 Cr.P.C. to take cognizance of offences under sections 166, 409, 406 read with section 120-B IPC. The petitioner herein was the prospective accused No.1 in the complaint case and the prospective accused Nos. 2 was the then Accountant in the Office of the Chief Medical and Health Officer and the prospective accused No.3 was the then Clerk in the Receiving Section of the office of the Chief Medical and Health Officer, Damoh.
According to the complainant, he retired from the post of District Family Welfare Officer (Surgical Specialist), in October 2001. The complainant/respondent no.1 further states that the petitioner and the other co- accused persons were responsible for the release of the General Provident Fund (hereinafter referred to as "the GPF") of the respondent no.1. It is further alleged that the accused persons were delaying the payment of the GPF on the alleged grounds of "missing deductions". The complainant further states that on 17.3.2004, there was an order of the Accountant General of Madhya Pradesh (hereinafter referred to as "AGMP") bearing No.85/Damoh/2861, a certified copy of which was marked to the complainant and was received by him on 3 19.3.2004. As per this order, the petitioner was to release in part, the GPF payment accruable to the respondent amounting to Rs.3,16,321/-. This order also mentions about the missing deductions. It is the case of the complainant that the amount was not paid despite the order.
On 29.3.2004, the complainant sends a notice to the AGMP and the petitioner No.1 relating to the missing deductions. The complainant contends that the said notice was received by the office of the petitioner on 31.3.2004. In response to the said notice, the complainant is stated to have received the copy of the letter dated 5.5.2004 issued from the Office of the AGMP, which was addressed to the petitioner in which the petitioner was directed to release the GPF amount of the respondent no.1. The complainant further alleges that the contention of the petitioner that the order dated 17.3.2004 having not been received by his office was incorrect as the complainant had gone to the office of the petitioner and upon enquiry, he was informed by someone there that the order dated 17.3.2004 has been received by the office of the petitioner. The complainant is stated to have cross-checked this fact by going to the post-office and receiving information from 4 the postman that the order dated 17.3.2004, which was sent by registered post from Gwalior from the Office of the AGMP, was delivered to the office of the petitioner. The complaint has been preferred only on account of a delay in the payment of the GPF which was ultimately deposited in the account of the respondent No.1 on 1.7.2004, which is undisputed and accepted by the learned counsel for the respondent No.1. However, the learned counsel for the respondent No.1 and the State while opposing the petition have submitted that the amount ought to have come into the account of respondent No.1 on 1.4.2004. Therefore, according to the learned counsel for the respondent No.1 and the State, the offences for which the cognizance has been taken by the learned Court below is on account of the delay in the non-payment of the GPF by three months. In order to substantiate this, the attention of this Court has been drawn to the impugned order of the learned Court below dated 16.12.2004, which is from pages 71 to 73 of the petition. The grounds for taking cognizance is laid out on page 72 wherein the learned Court below held:
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"आववेदक नवे प. पपी 05 प पपी 07, 8 , प. पपी 012, 13, 15,17, 18,19, और 20 तथथा 22 कवे जजो दस्तथाववेज पवेश ककयवे गए अववं प. पपी 023,24, कवे दस्तथाववेज सवे आववेदक / पररवथाददी कजो आववेदकगणजो नवे ररटथायरममेंट कवे पशथात जजो रथाशश उसवे समय पर पथाप्त हजोनथा थपी , समय पर न दवे तवे हहए उसवे उक्त रथाशश सवे ववंशचित रखथा."
Thus, it is absolutely clear that the only ground for having taken cognizance of the offences under sections 120-B read with sections 166 and 406 IPC was on account of a three month delay in the release of the GPF in favour of the respondent No.1.
The learned counsel for the petitioner has drawn the attention of this court to the police report, which is a part of the original Court file, which has been summoned by this Court, in which the police report also states that the GPF amount was deposited into the account of the respondent No.1 on 1.7.2004. This report is dated 4.10.2004.
The only question that arises for consideration before this Court is whether the aforesaid delay in deposit of the 6 GPF amount by the petitioner, would constitute offences under sections 406 and 166 IPC. Section 406 IPC is the punitive section providing punishment for an offence of criminal breach of trust. The substantive section laying down the ingredients of the offence is section 405 IPC. As per section 405 IPC, the primary pre-requisite for an offence of criminal breach of trust is entrustment of property or dominion over a property. Secondly, there must be a dishonest misappropriation or conversion of that property by the person in whom such property is entrusted or thirdly there must be dishonest use or disposal of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied, which the accused has made pertaining to the discharge of such trust, or wilfully suffers any other persons so to do, would deem to have committed an offence of criminal breach of trust. With regard to cases involving provident funds, explanations 1 and 2 to section 405 are also relevant. Explanation 1 provides for a person who is an employer, who deducts the employee's contribution from the wages payable to the employee, to be credited to a provident fund or a family pension fund, would be deemed to have been entrusted 7 with the amount of the contribution so deducted by him and where such a person makes default in the payment of such contribution to the fund in violation of the law, he would be deemed to have dishonestly used the amount of the said contribution. Explanation 1 is ex facie not applicable in this case as the petitioner herein is not the employer. The employer is the State of Madhya Pradesh and the entity which is vested with the task of deducting the contribution of the respondent no.1 towards provident fund, is the Office of the AGMP. The petitioner has no say with regard to such deductions.
As regards Explanation No.2, once again a person who is an employer deducts the employees' contribution from the wages payable to the employees, ostensibly to be credited to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation, would be deemed to have been entrusted with the amount of the contribution so deducted by him and where such a person makes a default in payment of such contribution to the said fund in violation of the Act, he would be deemed to have used dishonestly the amount of the said contribution in violation of a direction of law. Illustration "E" to section 405 IPC 8 offers guidance in the interpretation of this section. The said illustration relates to a revenue officer being entrusted with public money and where such money is to be paid into a certain Treasury is dishonestly misappropriated by such officer, he would be guilty of committing criminal breach of trust.
In this case, the undisputed facts reveal that the applicant's role falls in between the Accountant General's Office and that of the respondent No.1. His role is that of a post office. The order to release the GPF fund amount was issued by the AG Office on 17.3.2004. Thereafter, upon its receipt it was the duty of the petitioner to ensure that he gives his clearance to the Treasury and the Treasury would thereafter deposit the amount into the account of the respondent No.1. Nowhere in the complaint is it alleged that the petitioner had misappropriated the GPF amount due to the respondent No.1 and converted it to his own use in contravention of a direction of law, thereby causing loss to the respondent No.1 and neither is it alleged that the petitioner in conspiracy with anyone else has diverted the funds accruable to the respondent no.1 to anyone else, thereby causing an unlawful loss to the respondent no.1 and an attendant gain to a third party. 9 As stated hereinabove earlier, the only allegation is with regard to the delayed disbursal of the GPF amount by three months. As there is no allegation of any misappropriation by the petitioner herein and in the absence of any allegation that the amount of the respondent no.1 which lay vested with the petitioner was disposed of in any manner contrary to the dictates of law. The allegations do not prima facie fulfil the ingredients of section 405 IPC and, therefore, an offence under section 406 IPC cannot be held sustainable.
In the course of the arguments, the learned counsel for the respondent no.1 has referred to a decision of the Hon'ble Supreme Court in Bhargavan Pillai Vs. State of Kerala (2004) 13 SCC 217. The learned counsel for the respondent no.1 has drawn the attention of this court to paragraph no.13 of the judgment wherein the Supreme Court has held that for an offence of criminal breach of trust all that needs to be shown by the prosecution is entrustment. Once that is proved, it is for the accused to establis how the property was dealt with. This case primarily established a ratio on the requirement of previous sanction under section 197 Cr.P.C. for an offence committed by a person in his 10 capacity as a public servant. The observation relating to criminal breach of trust is in the nature of an obiter dicta which also, is binding upon this court. However, the admitted facts of this case go to clearly reveal that this was not a case of misappropriation but only a delay that was caused in the disbursement of the GPF amount. Under the circumstances, in the fact-premises of the present case, the said judgment of the Supreme Court in N.Bharvan Pillai would not be applicable. The second judgment referred to by the learned counsel for the respondent no.1 is Ajay Mehra Vs. Durgesh Babu (2002) 9 SCC 709. In that case, the Hon'ble Supreme Court held that the standard of evidence and its appreciation at the stage of taking cognizance is prima facie. At that stage, other materials ought not to be considered and the trial court only needs to see whether the allegations in the complaint prima facie make out an offence. For the reasons stated hereinabove, it is apparent that even if the complaint is taken in its entirety, it is clear that the offence under section 406 IPC is not made out as the amount which was due to the respondent no.1 has undisputedly been received by him. Thus, the prima facie evidence itself for constituting an offence under section 406 IPC, was 11 missing and, therefore, cognizance of the offence under section 406 IPC ought not to have been taken in the first place.
As regards the offence under section 166 IPC, the same provides for a public servant disobeying law with intent to cause injury to any person, punishable with a term of imprisonment which may extend to one year or with fine or with both. Before the said offence could be said to have been committed, it must prima facie be shown that the public servant knowingly disobeyed any direction of law as to the way in which he was to conduct himself as a public servant, thereby intending to cause or having the knowledge that it would be likely to cause by such disobedience, injury to any person. In the present case, there is no disobedience alleged by the petitioner of any direction of law as the petitioner has ultimately released the GPF amount of the respondent no.1 on 1.7.2004 much before the filing of the complaint case itself. It is only a delay of three months between the period on which the respondent no.1 became eligible to receive the amount and the date on which it was actually transferred to his account, due to which the case has been instituted. The rule of law that the law shall not concern itself with trifles, 12 which is enshrined in the maxim de minimis non curat lex comes to play in such a case. No person ought to be prosecuted for an offence on trifling issues where from the facts of the case itself it is apparent that the issue ought not to be placed before a court of law for adjudication. It would be appropriate to refer to section 95 of the Indian Penal Code where no act is an offence on account of the fact that it does slight harm that no person of ordinary sense and temper would complain of such harm. The respondent no.1 has not disclosed or demonstrated how the delay of three months affected him in such a manner causing such injury that the same required redressal by a court of law.
Under the aforementioned circumstances, the petition is allowed and the impugned order dated 16.12.2004 and further proceedings in Complaint Case No.1644/2004 pending in the Court of the Chief Judicial Magistrate Damoh is quashed insofar as it relates to the petitioner herein. The record of the trial court be sent back.
(Atul Sreedharan) Judge ss Digitally signed by SHYAMLEE SINGH SOLANKI Date: 2018.02.14 12:58:17 +05'30'