Farzana Tabassum Rahmani ( in Fir Farzana Tabassum) v. State of U.P. Thru. Secy. Home Lko. and Another

Allahabad HC18 Nov 2024A482/10148/2024

Case brief

AI extract

What is this about?

Applicant sought quashing of chargesheet and summoning order in an agreement-to-sell fraud case, contending the dispute was civil and she received no consideration. The court noted prima facie civil nature, issued notice to opposite party no. 2 and stayed further proceedings till next date.

What did the court decide?

Notice issued to opposite party no. 2; proceedings of Criminal Case No. 18063 of 2024 and cognizance/summoning order dated 17.09.2024 stayed till next listing.

Farzana Tabassum Rahmani ( in Fir Farzana Tabassum) vs… — Quashing and FIR | Allahabad HC (2024)

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Court No. - 15

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Case :- APPLICATION U/S 482 No. - 10148 of 2024

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Applicant :- Farzana Tabassum Rahmani ( In Fir Farzana Tabassum) Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another Counsel for Applicant :- Amarjeet Singh Rakhra,Bashisth Muni Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Shree Prakash Singh,J.

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Heard learned counsel for the applicant, learned AGA for the State and perused the record.

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The instant application under Section 482 Cr.P.C. has been filed on behalf of the applicant with the prayer to quash the Chargesheet dated 15.07.2024, arising out of Case Crime No. 0178 of 2024, under Sections 420, 467, 468, 406, 504 and 506 IPC and cognizance and summoning order dated 17.09.2024 passed by learned Chief Judicial Magistrate, Raebareli in Criminal Case No. 18063 of 2024; State Vs. Shahnawaz Khan and Another, as well as entire proceedings in pursuance thereof.

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Contention of learned counsel for the applicant is that the allegation in the First Information Report is that two agreements to sell were executed for the land in question, one belongs to the present applicant and another belongs to son of the applicant and lieu thereof, rupees ten lacs are allegedly received by son of the applicant. He added that further allegation is that the sale-deed was not executed, even after the best efforts made by the informant and thus, the amount of consideration, in respect of the agreement, i.e. Rs. 10 lacs has been misappropriated by committing cheat and fraud. He submits that there is no truthfulness in the allegation as no money has ever been received by the applicant. He next added that the dispute, if any, is of civil in nature and if the informant is aggrieved in any manner, he may take legal recourse by way of moving some Suit under the relevant provisions of law before the court of civil competence but on the place of instituting any Suit, the First Information Report has been lodged only with a view to mount undue pressure on the applicant.

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He further argued that the case of the applicant is squarely covered with the ratio of the judgment of Hon'ble Supreme Court rendered in the case of Bhaskar Lal Sharma & Others Vs. Monica reported in [(2009) 10 SCC 604], wherein Hon'ble Apex Court held as under:

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"69. The offence of criminal breach of trust as defined in Section 405 of

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the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.

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70. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are:

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(i) entrusting any person with property or with any dominion over property;

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(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or willfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.

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In the case of Vijay Kumar Ghai v. State of West Bengal reported in [(2022) 7 SCC 124] another two-judge bench of the Hon'ble Apex Court held that entrustment of property is pivotal to constitute an offence Under Section 405 of the Indian Penal Code. The relevant extract reads as follows:

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28. "Entrustment of property Under Section 405 of the 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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In the matter of K.W. Palanitkar Vs State of Bihar reported in [(2002) 1 SCC 241] wherein the Hon'ble Apex Court while dealing with the issue of the ingredients of Section 405 and 406 of IPC has held as under:

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"Every breach of trust may not result in a penal offence of criminal breach of trust unless there is an evidence of 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 redressal for damages in the Civil Court, but a breach of trust with mens rea gives rise to a criminal prosecution as well."

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Relying upon the aforesaid judgements, learned counsel for the applicant submits that the ingredients of Sections 406, 420, 467, 468 IPC would not attracted in the present case and further the applicant is an old lady of 75 years of age and she was never

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involved in committing the offence and due to the present First Information Report, she is being harassed for her no fault and thus, submission is that the criminal proceedings arising out of Case Crime No. 178 of 2024 may be quashed.

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Per contra, learned counsel appearing for the State has opposed the contentions aforesaid and submits that applicant is named in the First Information Report and there is specific allegation that she, by way of taking Rs. 5 lacs, had executed an agreement to sell and later on, she denied to get executed the sale-deed in favour of the informant and thus, she has committed cheat and fraud. She also added that there is documentary evidence against the applicant and after thorough investigation, the charagesheet has been filed and thus, she is not entitled for any relief.

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Considering the submissions of learned counsel for the parties, it transpires that the amount of consideration, in respect of the alleged execution of agreement to sell, is admittedly not received by the present applicant and as such she is not beneficiary. The applicant is an old lady of 75 years of age and prima facie, the dispute seems to be civil in nature.

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Matter requires consideration.

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Let notice be issued to opposite party no. 2, returnable at an early date.

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Steps be taken within a period of one week.

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List this case in the week commencing 16th of December, 2024.

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In the meantime, learned counsel for the opposite parties may file counter affidavit.

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Till then, the proceedings of Criminal Case No. 18063 of 2024, arising out of Case Crime No. 0178 of 2024, under Sections 420, 467, 468, 406, 504 and 506 IPC as well as cognizance and summoning order dated 17.09.2024 passed by learned Chief Judicial Magistrate, Raebareli, shall remain stayed.

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Order Date :- 18.11.2024 kkv/

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Digitally signed by :- KRISHAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Farzana Tabassum Rahmani ( in Fir Farzana Tabassum) v. State of U.P. Thru. Secy. Home Lko. and Another

Case brief

What is this about?

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Farzana Tabassum Rahmani ( in Fir Farzana Tabassum) v. State of U.P. Thru. Secy. Home Lko. and Another

Case brief

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What did the court decide?

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