Anup Kumar Vs the State of Jharkhand

( 2025:JHHC:37530 )

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 332 of 2025

Anup Kumar @ Anup Kumar Singh, aged about 64 years, son of Ram Satya Kumar, resident of Kumar Bhawan, Shivaji Road, Near Gurudwara, P.O.+P.S. –Ramgarh, District –Ramgarh. Permanent resident of Kila Mandir, Ramgarh Cantt, P.O.+P.S.+District -Ramgarh.

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.... Petitioner

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Versus

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The State of Jharkhand

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Rajendra Kumar Thakur, son of Late Badri Thakur, resident of Muram Kala, Naya Tola, P.O. & P.S. –Ramgarh, District –Ramgarh.

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Opp. Parties

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioner : Mr. Pratik Sen, Advocate For the State : Mr. P.K. Chatterjee, Spl. P.P.

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By the Court:-

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Heard the parties.

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This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with the prayer to quash the entire criminal proceeding including the order dated 05.09.2024, passed in connection with Complaint Case No. 440 of 2023 by the learned Sub Divisional Judicial Magistrate, Ramgarh whereby and where under the learned Sub Divisional Judicial Magistrate, Ramgarh has found prima-facie case for the offence punishable under Section 406 of the Indian Penal Code.

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Cr.M.P. No.332 of 2025

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The allegation against the petitioner is that the petitioner sold a T.V. to the complainant and there was a defect in the T.V. The same was intimated by the complainant to the petitioner and the petitioner asked the complainant to come to his shop with the T.V. and upon taking the T.V. to the petitioner, the petitioner asked for another Rs.21,000/- to set right the defect in the T.V. The complainant filed a consumer case and also served a legal notice. The T.V. was purchased in January, 2018 and the defect was detected in November, 2018 when the T.V. was handed over to the shop of the petitioner for carrying out repair work and on 13.01.2023, a legal notice was sent.

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It is submitted by the learned counsel for the petitioner that the allegations against the petitioner are false and even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out, in the absence of any allegation of dishonest misappropriation of any entrusted property. It is next submitted that the decision in the consumer case filed by the complainant was passed in favour of the petitioner. It is then submitted that the case has been instituted after a delay of four years from the date of alleged occurrence of the defective T.V. being sold. Hence, it is submitted that the cognizance of the offence is barred by Section 468(2)(c) as the maximum punishment for the offence punishable under Section 406 of the Indian Penal Code does not exceed three years.

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Cr.M.P. No.332 of 2025

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The learned counsel for the petitioner relied upon the Judgment of the Hon’ble Supreme Court of India in the case of Inder Chand Bagri Vs. Jagadish Prasad Bagri and Another , reported in 2025 SCC Online SC 2529 wherein it was observed by the Hon’ble Supreme Court of India that if the complainant omits to aver as to how the property entrusted to the accused was dishonestly misappropriated or converted for his own use by the accused, the offence punishable under Section 406 of the Indian Penal Code is not made out.

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The learned counsel for the petitioner next relied upon the Judgment of the Hon’ble Supreme Court of India in the case of Sarah Mathew Vs. Institute of Cardio Vascular Diseases , reported in (2014) 2 SCC 62 and submits that in para-51 whereof the Hon’ble Supreme Court of India has held that for the purpose of computing the period of limitation under Section 468 Cr.P.C., the relevant date is the date of filing the complaint or the date of institution of prosecution. Hence, it is submitted that as the offence punishable under Section 406 of the Indian Penal Code is not made out and the cognizance is barred by limitation. Hence, it is submitted that the prayer as prayed for by the petitioner in this criminal miscellaneous petition be allowed.

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The learned Spl. P.P. on the other hand vehemently opposes the prayer as prayed for by the petitioner in this criminal miscellaneous petition and submits that the materials in the record are sufficient to constitute the offence punishable under

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Cr.M.P. No.332 of 2025

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Section 406 of the Indian Penal Code and under Section 473 of the Code of Criminal Procedure and the learned Magistrate was vested with the power to extend the period of limitation in appropriate cases. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the essential ingredients to constitute the offence punishable under Section 406 of the Indian Penal Code are as under:-

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(i) There must be an entrustment; and

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(ii) There must be misappropriation or conversion to one’s own use or use in violation of a legal direction or any legal contract, as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641 .

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Now coming to the facts of the case, the undisputed fact remains that the petitioner handed over the T.V. upon receiving the consideration amount of the T.V. and later on some defect was detected in the T.V. and the T.V. malfunctioned. When the complainant came to the petitioner for repair of the same, the petitioner demanded Rs.21,000/- over and above the cost price of the T.V. for carrying out the repair. This in the considered opinion of this Court neither amounts to entrustment nor amount to

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Cr.M.P. No.332 of 2025

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dishonest misappropriation of the entrusted property etc. which is the key essential ingredient to constitute the offence punishable under Section 406 of the Indian Penal Code.

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Under such circumstances, as even if the entire allegations made against the petitioner are considered to be true, still the offence punishable under Section 406 of the Indian Penal Code is not made out coupled with the fact that the complaint is filed beyond the period of three years from the date of alleged occurrence which took place in the year 2018 and the complaint was admittedly filed in the year 2023, this Court is of the considered view that continuation of the criminal proceeding will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding including the order dated 05.09.2024, passed in connection with Complaint Case No. 440 of 2023 by the learned Sub Divisional Judicial Magistrate, Ramgarh whereby and where under the learned Sub Divisional Judicial Magistrate, Ramgarh has found prima-facie case for the offence punishable under Section 406 of the Indian Penal Code be quashed and set aside.

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Accordingly, the entire criminal proceeding including the order dated 05.09.2024, passed in connection with Complaint Case No. 440 of 2023 by the learned Sub Divisional Judicial Magistrate, Ramgarh whereby and where under the learned Sub Divisional Judicial Magistrate, Ramgarh has found prima-facie case for the

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Cr.M.P. No.332 of 2025

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offence punishable under Section 406 of the Indian Penal Code is

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quashed and set aside.

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