Partly allowed

Ram Vishal and 2 Others v. State of U.P.and Another

Allahabad HC9 Nov 2022A482/18006/2022

Case brief

AI extract

What is this about?

The High Court quashed the charge sheet and cognizance order only regarding an offence under Section 406 IPC, holding that the dispute was commercial and lacked entrustment, but directed the trial court to proceed with offences under Sections 323, 504, and 506 IPC.

What did the court decide?

Charge sheet and cognizance order quashed only qua Section 406 IPC; Trial for Sections 323, 504, 506 IPC directed to proceed.

Ram Vishal and 2 Others Vs State of… — Contract and Commercial Disputes | Allahabad HC (2022)

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Reserved on 31.10.2022

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Delivered on 09.11.2022

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 18006 of 2022

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Applicant :- Ram Vishal And 2 Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Abhishek Kumar Yadav,Kanchan Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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1 . Applicants are challenging a charge sheet No. 242 of 2019 dated 18.06.2019 and cognizance order dated 21.09.2019 passed by Additional Chief Judicial Magistrate VIII, Allahabad in Case No. 1719 of 2019 (State vs. Ram Vishal and others), arising out of Case Crime No. 458 of 2018, under Sections 406, 323, 504, 506 IPC, Police Station Handia, District Allahabad.

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2 . Sri Durgesh Dubey and Sri Abhishek Kumar, learned counsels for applicants, have argued that alleged dispute was arising out of a commercial transaction. Father of Applicant-1(since deacased) has entered into a partnership by way of registered deed dated 25.05.2017 with complainant (Opposite Party No. 2) with regard to share of manufacturing bricks. Allegedly there was certain dispute between father of Applicant-1 as well as the applicants with Opposite Party No. 2 regarding payment of bricks and when allegedly Opposite Party No. 2 was called for negotiation, the applicants assaulted him and in these circumstances above referred FIR was lodged on 15.06.2018 and after investigation charge sheet was filed on 18.06.2019 on which cognizance was taken by order dated 21.09.2019. Learned counsels further submitted that the ingredients of Section 406 IPC are not made out as neither there was any entrustment of property or dominion over any property and the allegations of assault are also not made out prima facie as no injury report was placed during investigation.

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3 . The above submissions are opposed by learned AGA appearing for State. He has supported the investigation as well as the statements recorded

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during investigation that prima facie case was made out against applicants for committing the above referred offence.

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4 . Opposite Party No. 2, i.e., complainant was duly served but has not put in appearance.

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5 . Heard learned counsel for parties and perused the material available on record.

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6 . In order to consider the submission of learned counsel for applicants that ingredients of Section 406 IPC are made out or not, it would be apposite to refer a judgement passed by Supreme Court in Vijay Kumar Ghai and others vs. State of West Bengal and others, (2022) 7 SCC 124 wherein the ingredients for criminal breach of trust were discussed and relevant paragraphs thereof are mentioned hereinafter:

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"27. Section 405 of IPC defines "Criminal Breach of Trust" which reads as under: -

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" 405. 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".

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The essential ingredients of the offence of criminal breach of trust are:-

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(1) The accused must be entrusted with the property or with dominion over it,

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(2) The person so entrusted must use that property, or;

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(3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation,

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(a) of any direction of law prescribing the mode in which such trust is to be discharged, or;

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(b) of any legal contract made touching the discharge of such trust.

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28. "Entrustment" of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, ''in any manner entrusted with property'. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of ''trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.

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29. The definition in the section does not restrict the property to movables or immoveable alone. This Court in R K Dalmia vs Delhi Administration, (1963) 1 SCR 253 held that the word ''property' is used in the Code in a much wider sense than the expression ''moveable property'. There is no good reason to restrict the meaning of the word ''property' to moveable property only when it is used without any qualification in Section 405.

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30. In Sudhir Shantilal Mehta Vs. CBI, (2009) 8 SCC 1 it was observed that the act of criminal breach of trust would, Interalia mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.”

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7 . As referred above, there was a partnership agreement between the complainant and father of Applicant-1, copy whereof is annexed alongwith this application as well as in the statement of complainant with regard to allegation for offence under Section 405 IPC are that despite the bricks were given to them, payment was not made despite repeated promises, therefore, it appears to be a commercial transaction and as referred above, since there is no ingredient of entrustment of any property or dominion over property, therefore, even considering the statement of complainant to be true at its face value the ingredients of offence under Section 405 IPC (punishable under section 406 IPC) are not made out.

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8 . The other argument is with regard to alleged assault on the complainant when he was called for negotiation. The statement of complainant in this regard was consistent and independent witnesses,

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namely, Ran Vijay and Kamta Prasad Pandey, have also categorically supported the allegation of assault. Only for the reason that there was no medical report of complainant, it cannot be said at this stage that allegation would not fall under the definition of 'hurt', as mentioned under Section 319 IPC, which is reproduced as under:

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“319. Hurt.—Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.”

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9 . Therefore, the offence under Sections 323, 504, 506 IPC are prima facie made out.

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10 . The outcome of above discussion is that the charge sheet No. 242 of 2019 dated 18.06.2019 and cognizance order dated 21.09.2019 passed by Additional Chief Judicial Magistrate VIII, Allahabad in Case No. 1719 of 2019 (State vs. Ram Vishal and others), arising out of Case Crime No. 458 of 2018, under Sections 406, 323, 504, 506 IPC, Police Station Handia, District Allahabad, is hereby quashed only qua to offence under Section 406 IPC. However, applicants shall face trial qua to offence under Sections 323, 504, 506 IPC. The Trial Court is directed to proceed with the trial and conclude it expeditiously. The application is partly allowed.

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11. The interim order is vacated.

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Order Date :- 09.11.2022 AK/Nirmal

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[Saurabh Shyam Shamshery, J.]

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Digitally signed by NIRMAL SINHA Date: 2022.11.09 16:00:06 IST Reason: Location: High Court of Judicature at Allahabad

Ram Vishal and 2 Others v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

Ram Vishal and 2 Others v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

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