Punjab-Haryana High Court
Buta Singh vs State Of Punjab And Another on 8 January, 2013
Author: Sabina
Bench: Sabina
Criminal Misc. No.M-2587 of 2012 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.M-2587 of 2012 (O&M)
Date of decision:8.1.2013
Buta Singh
......Petitioner
Versus
State of Punjab and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Beant Singh, Advocate for
Mr.B.S.Bhalla, Advocate,
for the petitioner.
Mr.J.S.Bhullar, AAG, Punjab.
****
SABINA, J.
Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.118 dated 11.7.2008 under Section 406 of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Kot Isekhan, District Moga (Annexure P-2); charges dated 27.1.2011 (Annexure P-3) and all the subsequent proceedings arising therefrom.
The case of the complainant, in brief, is that he (complainant) was resident of village Lohara. Complainant had given ` 1,00,000/- to Buta Singh and Company, Commission Agent, Shop No.48-A, Grain Market, Moga on 15.12.2003 and rate of interest was settled at ` 1.50 paise. On 9.5.2006, ` 32,000/- were returned to the Criminal Misc. No.M-2587 of 2012 (O&M) 2 complainant but remaining amount of ` 68,000/- along with interest had not been returned to him by Buta Singh. Despite numerous requests, Buta Singh had failed to return the amount in question and had rather threatened and abused him. Hence, it was requested that assistance be provided to him to recover the amount in question from Buta Singh.
On the basis of the statement of the complainant, FIR in question was registered.
Respondent No.2 had refused to accept notice of the petition.
After hearing learned counsel for the petitioner as well as learned State counsel, I am of the opinion that the present petition deserves to be allowed.
In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-Criminal Misc. No.M-2587 of 2012 (O&M) 3
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) 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 Magistrate as contemplated under Section 155(2) of the Code.
(5) 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.
(6) Where there is an express legal bar engrafted in Criminal Misc. No.M-2587 of 2012 (O&M) 4 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 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." A perusal of the FIR reveals that the dispute between the parties is purely civil in nature. Respondent No.2 had lent money to the petitioner on interest. Since the petitioner had failed to return part of the loan amount, the remedy available to respondent No.2 was to file a suit for recovery. However, respondent No.2 has lodged the FIR in question to seek recovery of the amount in question along Criminal Misc. No.M-2587 of 2012 (O&M) 5 with interest. FIR in question has been registered under Section 406 IPC. Punishment for criminal breach of trust has been provided in Section 406 IPC.
Criminal breach of trust has been defined in Section 405 IPC. The same reads as under:-
"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".
A perusal of the above provision reveals that unless there is entrustment of property by a person to the accused, there can be no offence of criminal breach of trust. It has to be proved on record that beneficial interest in the property in respect of which the offence is alleged to have been committed vested in some person other than the accused and the accused held that property on behalf of that person. Thus, the transferee obtains interest in the property entrusted to him for the purpose it is entrusted to him. In case the accused dishonestly misappropriates the property entrusted to him, the offence of criminal breach of trust can be said to have been committed. However, the present case cannot be said to be a case Criminal Misc. No.M-2587 of 2012 (O&M) 6 falling within the mischief of criminal breach of trust. In the present case, the complainant had lent money in question to the petitioner as a loan. Since the petitioner had failed to repay the loan, the remedy available with the complainant was to file a suit for recovery and not seek criminal prosecution of the petitioner qua offence punishable under Section 406 IPC.
Accordingly, the petition is allowed. FIR No.118 dated 11.7.2008 under Section 406 IPC registered at Police Station Kot Isekhan, District Moga (Annexure P-2); charges dated 27.1.2011 (Annexure P-3)and all the subsequent proceedings arising therefrom are quashed.
(SABINA) JUDGE January 8, 2013 anita