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Showing contexts for: section 406 ipc in B. N. Gupta vs State on 10 April, 2018Matching Fragments
1. By this common order I shall dispose of the two revision petitions of applicants/revisionists.
2. The revisionists have challenged the impugned order dated 23/03/2013 whereby Ld. Trial Court has taken cognizance of the offence punishable under Section 406, 420 and 120B IPC and issued summons to the revisionist.
3. The grounds raised in the revision petition for impugning the order dated 23/03/2013 are; Ld. Trial Court has mechanically, without assigning any reason has taken cognizance. Ld. Trial Court has failed to properly examine and consider the documents filed alongwith the Chargesheet. The allegations do not constitute Commission of any offence under IPC and at best constitute breach of contract, the remedy whereof is damages through Civil proceedings. Cognizance of both the offences i.e. under Section 406 IPC and 420 IPC cannot be taken simultaneously being mutually exclusive and held to be antithesis of each other. The disputes between the parties are commercial in nature and no criminal liability can be fastened upon the revisionist besides other grounds.
15. Before examining respective contentions on their relative merits, I think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the persons wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well. Before referring to the submissions of the parties it is expedient to refer to the definition of "Cheating" and "Breach of Trust" as defined in Section 405 & 415 of the IPC punishable u/s 406 & 420 IPC respectively:
27. Section 406 Indian Penal Code prescribes punishment for criminal breach of trust as defined in Section 405 Indian Penal Code. For the offence punishable Under Section 406 Indian Penal Code, 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.
28. Criminal breach of trust is defined in Section 405 IPC and it is made punishable under Section 406 IPC. For invoking these provisions, complainant has to show that he had entrusted the accused persons with property or, had given them any dominion over his property and the accused persons dishonestly misappropriated or converted the said property to their own use or, dishonestly disposed of the said property.
34. The ingredients of offences u/s 406 IPC are quite different from the ingredients u/s 420 IPC. A person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction. No person can be penalized for commission of both the offences. Inasmuch as an offence u/s 406 IPC, provides for punishment for criminal breach of trust, where a person is either entrusted with a property or acquires dominion over the property and he misappropriates the same dishonestly or converts the same for his own use or dishonestly uses or disposes of that property. In criminal breach of trust, person comes into possession of a property honestly, but he develops dishonest intention subsequent to his acquiring dominion over the property by way of entrustment or otherwise. Whereas section 420 IPC provided punishment for commission of an offence of cheating. Cheating is defined in Section 415 IPC, which provides that, the person, in a case of cheating, acts with dishonest intention right from the commencement of the transaction, the person acted dishonestly, which means that the intention of making either wrongful gain or wrongful loss to a person deceived. In Wolfgang Reim & Ors. vs. State & Anr. 2012(3)JCC2042, Hon'ble High Court of Delhi held as under;