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Suresh Kumar Gupta Vs. Om Parkash Alipuria - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1977CriLJ1416
AppellantSuresh Kumar Gupta
RespondentOm Parkash Alipuria
Cases Referred and State v. Dahyalal Dalpatram
Excerpt:
.....powers of superintendence under article 227 of the constitution. - according to the averments in the complaint, the father of the complain-an. the well established principle of law is not disputed by the learned counsel for both the parties that if from the averments in the complaint no offence whatsoever is disclosed or made out, the proceedings can be quashed under section 482 of the code. 6. for making out a case of criminal breach of trust, the ingredients of the offence, as defined in section 405, indian penal code, have to be satisfied......law is not disputed by the learned counsel for both the parties that if from the averments in the complaint no offence whatsoever is disclosed or made out, the proceedings can be quashed under section 482 of the code. however, if no final conclusion can be reached as to whether the commission of any offence is made out or not, the extraordinary course should not be adopted to quash the proceedings.5. according to the complaint, a postdated cheque for rs. 2,223/- was issued by the petitioner to the respondent on april 1, 1973, which was presented to the bank on july 30, 1973, but the same was dishonoured. the said cheque had been accepted by the respondent on the assurance that it would be positively honoured and encashed. the question is : whether this act on the part of the petitioner.....
Judgment:

Harbans Lal, J.

1. This is a petition Under Section 482, Cr. P. C., (hereinafter called the Code) for quashing the proceedings initiated on the basis of a complaint filed by the respondent against the petitioner Under Sections 420 and 406, Indian Penal Code, pending in the Court of the Judicial Magistrate, First Class, Ludhiana.

2. A complaint, Under Sections 420 and 406, I. P. C. was filed by the respondent against the petitioner on November 1, 1975, in the Court of the Judicial Magistrate, First Class, Ludhiana, in which after recording the preliminary evidence, the petitioner was summoned Under Sections 420 and 406, Indian Penal Code. An application was made by the petitioner Under Section 245 of the Code, for dropping the proceedings against him. The said application was dismissed by the learned Magistrate by his order dated July 8, 1976 and a copy of the same is Annexure P. 5 to the petition. According to the averments in the complaint, the father of the complain-an., respondent, Shri Sham Lal (who is alive) entrusted the petitioner on July 12, 1972, with an amount of Rs. 24.800/- for the purpose of distributing the same amongst his sons. The respondent is one of his sons. The respondent was paid Rs. 7,000/- by the petitioner on the basis of two cheques which were encashed on August 3, 1972 and December 7, 1972. An amount of Rs. 2,223/-, more was to be paid to the respondent. The petitioner issued on April 1, 1973, Cheque No. A 639623 dated July 5, 1973, for Rs. 2,223/- in favour of the respondent at the residence of the respondent in the presence of his father and some other persons. The said cheque was drawn on the State Bank of Patiala. At the time of issuance of the cheque, an assurance was given by the petitioner that there will be no difficulty in getting the cheque encashed after July 5, 1973. This cheque was presented to the Bank on July 30, 1973, but the same was dishonoured. Thereafter, the respondent approached the petitioner a number of times for payment of the amount in respect of which the cheque had been issued, but the petitioner avoided to do so on one pretext or the other. It was further averred that if the respondent knew that the cheque would not be honoured, he would not have accepted the post dated cheque from the petitioner. It was also averred that the petitioner had dishonestly misappropriated the amount to his own use and had, thus, committed criminal breach of trust.

3. In the present petition, it has been averred that the petitioner is an Advocate practising at Patiala. In the year 1972, he was deputed by Shri Sham Lal, the father of the respondent, to partition his property amongst his sons. Some amount in cash was also deposited with him for the purpose of compensating those sons who were given less share of immovable property. The immovable property was partitioned. The said Shri Sham Lal, father of the respondent, at first, filed a complaint against the petitioner in the Bar Council of Punjab and Haryana at Chandigarh on July 18, 1973, which was, however, dismissed. Thereafter, a suit for rendition of the account was filed in the Court of the Subordinate Judge, First Class, Patiala, on June 12, 1975, a certified copy of which is Annexure P. 2, which is still pending.

4. According to the learned Counsel for the petitioner, from the averments in the complaint, no offence whatsoever either Under Section 420 or Section 406, Indian Penal Code, |is made out against the petitioner. The well established principle of law is not disputed by the learned Counsel for both the parties that if from the averments in the complaint no offence whatsoever is disclosed or made out, the proceedings can be quashed Under Section 482 of the Code. However, if no final conclusion can be reached as to whether the commission of any offence is made out or not, the extraordinary course should not be adopted to quash the proceedings.

5. According to the complaint, a postdated cheque for Rs. 2,223/- was issued by the petitioner to the respondent on April 1, 1973, which was presented to the Bank on July 30, 1973, but the same was dishonoured. The said cheque had been accepted by the respondent on the assurance that it would be positively honoured and encashed. The question is : whether this act on the part of the petitioner to issue a post-dated cheque which was ultimately dishonoured, amounted to an offence Under Section 420 or Section 406, I. P. C. or under both the provisions. The essential ingredient of the offence of cheating, Under Section 420, I. P. C. is that on the basis of a fraud or misrepresentation, the complainant is induced to part with any valuable property. In the present case, on the basis of the cheque issued by the petitioner, the respondent was not induced to deliver any property or any valuable security. Under the circumstances, in the present case, this essential ingredient is absolutely lacking in the prosecution version. Under no stretch of interpretation, a conclusion can be reached that any offence Under Section 420, I. P. C., is made out from the story as disclosed in the averments of the complaint made by the complainant.

6. For making out a case of Criminal breach of trust, the ingredients of the offence, as defined in Section 405, Indian Penal Code, have to be satisfied. The said pro vision is reproduced below :

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.

According to this provision, the essential ingredients of the offence are that it must be proved that the accused was entrusted with the property or with any dominion over the property and that the same was dishonestly misappropriated or converted to his own use in the present case, the aver merits in the complaint are to the effect that an amount of Rs. 24,800/- was entrusted to the petitioner by the father of the respondent out of which a sum of Rs. 7.000/-was paid to the respondent by means of two cheques, and a post dated cheque for Rupees 2,223/- issued by the petitioner to the respondent was not honoured. From these averments, it is clear that the amount was deposited or entrusted with the petitioner not by the respondent, but by his father and the same was intended to be distributed through the petitioner amongst all sons of the father of the respondent and not to the respondent alone. The fact that a cheque for Rs. 2,223/- was issued by the petitioner in favour of the respondent is required to show that the respondent was entitled to this amount (sic). The fact that this amount of the cheque was not made available to the respondent is sought to be utilised for the purpose of proving that this amount was due to the respondent and was misappropriated by the petitioner as the cheque was not honoured. If the amount had been entrusted by the father of the respondent for distribution amongst his sons including the respondent, and if any part of the amount so deposited or entrusted was not utilised in the manner provided by the father of the respondent, then the same would be returnable to the father of the respondent and not to the respondent. The respondent may have his remedy against his father inasmuch as he may claim that he had not been given his due share in the immovable property or the cash to which he was entitled, but the respondent has no legal claim whatsoever against the petitioner.

7. According to the learned Counsel for the respondent, in order to prove the offence Under Section 406 Indian Penal Code, it is not necessary that the amount should be entrusted to the accused by the complainant himself and that it was enough if the accused was holding the property or the cash in trust and not as his own and the same had been misappropriated by him. In support of this contention, reliance has been placed on Surendra Pal Singh v. State AIR 1957 AH 122 : 1957 Cri LJ 170 and State v. Dahyalal Dalpatram AIR 1960 Bom 53 : 1960 Cri LJ 217.

8. In Surendra Pal Singh's case (supra), the accused realised a larger sum from certain cultivators on account of canal dues in his capacity as Canal Amin, but deposited lesser amount in the Government treasury. The balance was not deposited in the treasury and appropriated by the accused to himself. It was held that the balance amount which was not deposited in the treasury was not due to the Government and, therefore, was not the property of the Government at any stage and as such, the accused did not become a trustee on behalf of the Government It was further held that the amount had been realised from the cultivators on the basis of the misrepresentation that the same was due from them and, therefore, the accused could be held liable only for the offence of cheating and not for the offence of criminal breach of trust Under Section 406, I. P. C.

9. In Dahyalal Dalpatram's case (supra), the accused as a Talati employed in the Revenue Department was invested with authority to collect land revenue and fines ordered to be recovered under the Land Revenue Code from landholders. Some such amount was collected, but not deposited in the treasury. It was contended that this amount was, in fact, not due from the landholders and, therefore, the accused was not guilty of criminal breach of trust It was held that any amount which was collected as a tax or fine by the accused from the landholders becomes public fund and the accused becomes entrusted with that fund and if he misappropriates the same, he is guilty of criminal breach of trust.

10. I am afraid, the facts in both the above-mentioned cases were entirely different from the present case and the ratio of either of those decisions is of no avail to make out a case for criminal breach of trust against the present petitioner, in the facts and circumstances of the present case. So far as the respondent is concerned, the petitioner cannot be held a trustee of the amount for which the post dated cheque was issued by him in favour of the respondent. If any amount deposited with the petitioner by the father of the respondent is not utilised for the purpose for which it was given, the father of the respondent may have his remedy both under the civil and criminal law, but it is not proper to express any opinion on the same in this case. However, so far as the averments in the complaint filed by the respondent are concern ed, no offence whatsoever is made out against the petitioner either Under Section 420 or Section 406, I. P. C.

11. It was then contended by the learned Counsel for the respondent, that the petitioner had been already summoned and his application Under Section 245 of the Code was also dismissed by the learned Judicial Magistrate, Under the circumstances, the proceedings cannot be quashed at this stage. This contention has no force, The order regarding the summoning of the petitioner had been passed by one Judicial Magistrate and the application Under Section 245 of the Code, was submitted before his successor who doubted if any case Under Section 420, I. P. C, was made out against the petitioner, but came to the conclusion that the preliminary evidence did disclose a prima facie case against the petitioner Under Section 406, Indian Penal Code, This order, however, cannot stand in the way of quashing proceedings Under Section 482 of the Code. This Court is fully within its jurisdiction to pass the appropriate order under its inherent jurisdiction as embodied Under Section 482 of the Code, to prevent the abuse of the process of the Court.

12. For the reasons mentioned above, this petition succeeds and is allowed. The proceedings initiated on the basis of the complaint Under Sections 420 and 406, I. P. C. against the petitioner, in the Court of the Judicial Magistrate, First Class, Ludhiana, are hereby quashed.


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