Document Fragment View
Fragment Information
Showing contexts for: section 406 and 420 ipc in Siya Ram Singh vs The State Of Bihar Through D.M. Kaimur, ... on 5 October, 2015Matching Fragments
15. I have heard the learned Counsel for the respective parties and have given my thoughtful consideration to the submissions made by them.
16. Before examining the respective contentions on merits, it 54 Patna High Court Cr. WJC No.931 of 2015 dt.05-10-2015 would be appropriate to analyze the legal proposition vis-à-vis the contentions raised by the counsel for the parties.
17. Sections 406 and 409 IPC prescribe punishment for criminal breach of trust. Section 405 IPC defines the offence of criminal breach of trust, which reads as under :
(c) That such misappropriation, conversion, use or disposal was in violation of any direction of law prescribing the mode in which such trust was discharged.
55 Patna High Court Cr. WJC No.931 of 2015 dt.05-10-2015
19. The crucial word used in Section 405 IPC is „dishonestly‟, and therefore, it implies the existence of mens rea, that is to say, a guilty mind. Dishonest intention is the gist of the offence. The offence of criminal breach of trust is completed by the misappropriation or conversion of the property dishonestly. The word „dishonestly‟ is defined in Section 24 IPC, which reads as under :-
23. Having considered the definition of Sections 23, 24 and 405 IPC, it would be evident that the gist of the offence prescribed under section 406 IPC, 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 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.
37. In the matter of Binod Kumar and ors. (Supra), a decision on which the petitioners have placed reliance, the question before the Supreme Court was whether the charges under Section 406 IPC for allegedly retaining the bill amount payable by the appellant to respondent no. 2 was liable to be set aside. In the aforementioned case, the dispute related to non-payment of bill amount of Rs.34,505/- pertaining to a contract executed by the respondent no. 2. The contract was entered into between respondent no. 2 and K.S.S. College on 04.09.1990 for the construction of building of K.S.S. College, Lakhisarai, a constituent unit of Tilka Manjhi Bhagalpur University. According to the second respondent, since money and material requisites were not given to him in time, the work was not completed within the stipulated period. The University vide letter dated 09.05.1995 informed respondent no. 2 that his contract is terminated and all his dues including final bill, earnest money and security deposit, etc. will be released after consultation with the College 65 Patna High Court Cr. WJC No.931 of 2015 dt.05-10-2015 Development Committee. The University Engineer vide letter dated 04.06.1996, addressed to the Principal of the College, informed that payment of Rs.48,505/- is payable to the contractor, but the respondent was paid Rs.14000/- vide cheque as per direction of the College Development Committee and balance amount of Rs.34,505/- was not paid to him. Aggrieved by the said non-payment of the entire amount, respondent no. 2 filed criminal complaint in the Court of Sub-Divisional Judicial Magistrate, Lakhisarai for criminal breach of trust. After the cognizance was taken and the matter reached the stage of framing of charge, an application for discharge was filed before the learned Sub-Divisional Judicial Magistrate, Lakhisarai. Learned Sub- Divisional Judicial Magistrate, Lakhisarai dismissed the said petition and directed the appellant to remain present in Court for framing charges under Sections 406 and 120-B IPC. The appellant filed a petition under Section 482 Cr.P.C. before the High Court for quashing of the said order. The High Court dismissed the petition. Aggrieved by the same, the appellant moved before the Supreme Court. After taking into consideration the facts and circumstances of the case, the Supreme Court held that the essential ingredients of dishonest misappropriation and cheating are missing and hence the prosecution of the appellant under Section 406 and 120-B IPC was quashed.