(2002)
CriLJ 2125
PUNJAB
AND HARYANA HIGH COURT
SINGLE
BENCH
SMT.
SEEMA — Appellant
Vs.
SATISH SACHDEVA AND ANOTHER —
Respondent
(
Before
: J.S. Khehar, J )
Criminal
Miscellaneous No. 7284-M of 2000
Decided
on : 03-01-2002
· Penal
Code, 1860 (IPC) — Section 405, 406, 420
Penal
Code, 1860 (IPC) - Section 405 - Ingredients of offence - Non - entrustment of
property to accused - To constitute an offence of criminal breach of trust it is
essential to prove first of all that the accused was entrusted with some
property or with any dominion or power over it. It has to be established further
that in respect of the property entrusted, there was dishonest misappropriation,
or dishonest conversion, or dishonest use, or disposal in violation of a
provision of law. So far as the allegations made in the complaint against the
petitioner are concerned, it is not even the case of the complainant himself
that petitioner had been entrusted the amount in the chit fund in any manner
directly or indirectly. It is also not the case of the complainant that there
was any agreement between the complainant and petitioner in respect of the money
deposited by him in the chit fund. It is, therefore, obvious that the
ingredients of the offence under Section 405 of the Indian Penal Code are
clearly not made out against petitioner.
Hence,
the order of the Judicial Magistrate summoning petitioner is liable to be set
aside.
Penal
Code, 1860 (IPC) - Section 420 - Ingredients of offence - Absence of dishonest
inducement - Before an offence of cheating dishonestly under Section 420 of the
Indian Penal Code is made out, it is necessary to establish that the accused
must have cheated or dishonestly induced a person to deliver property or a
valuable security. Even in the complaint, if taken on its face value and
accepted as correct, it is not alleged that the petitioner accused 'S' ever
induced the complainant to enroll as a member of the chit fund established by
'S' (who is admittedly her brother). Merely because 'S' is alleged to have
purchased certain articles from the amount deposited by the complainant at the
time of marriage of the petitioner 'S', would not make any difference insofar as
the offence contemplated under Section 420 of the Indian Penal Code is
concerned, insofar as 'S' is concerned.
Hence,
the order of the Judicial Magistrate summoning petitioner is liable to be set
aside.
Counsel
for Appearing Parties
Vineet
Sharma, for the Appellant;
Cases
Referred
Final
Result : Allowed
ORDER
J.S.
Khehar, J.—Satish Sachdeva (respondent No. 1 herein) made a complaint dated
12-6-1999 to the Superintendent of Police. Amritsar City-II, alleging that Sham
Sunder son of Banarai Dass,
started a chit fund company under the name and style of M/s. S. Finance, G.T.
Road, Near Bus Stand. Amritsar. He claimed that he had
enrolled himself as a member of the Chit Fund and made regular contribution of
Rs. 10,000/-every month on account of which he was entitled to receive a sum of
Rs. 1,50,000/-on 30-9-1998. Despite repeated requests made by him to the
aforesaid Sham Sunder, the amount had not been returned. The complainant, on the
basis of the aforesaid facts, alleged in his aforesaid complaint that he had
been made a member of the chit fund fraudulently by Sham Sunder so as to
dishonestly cheat him for personal monetary gains. It was also alleged that the
amount deposited by the complainant in the chit fund was dishonestly
misappropriated by the aforesaid Sham Sunder. A compromise was entered into
between the complainant Satish Sachdeva and the accused Sham Sunder on 22-6-1999 wherein
Sham Sunder agreed to pay the complainant Satish Sachdeva all outstanding dues.
2.
It is the case of the complainant Satish Sachdeva that despite the aforesaid compromise, Sham Sunder
had failed to honour the commitment made despite
repeated requests. It is in the aforesaid circumstances that Satish Sachdeva made a complaint
under Sections 405/406 and 420 of the Indian Penal Code to the Judicial
Magistrate 1st Class, Amritsar, on 27-9-1999. In the instant complaint Satish Sachdeva, the complainant
alleges that on account of the deposits made by him, he was to be released a sum
of Rs. 30,000/- on 30-6-1998, a sum of Rs. 1,00,000/- on 30-8-1998 and finally a
sum of Rs. 2,50,000/- on 25-9-1998 as a consequence of his contribution to three
chit funds. It is alleged in the aforesaid complaint that despite his
contributions, Sham Sunder accused had failed to release the payments to him.
Paragraph 6 of the complaint which is relevant to the present controversy is
being extracted hereunder :-
6.
That the above amounts along with amounts of other subscribers were utilised by Shri Sham Sunder on
the following assets :-
1.
Renovation of H. No. 231, Tilak Nagar,
Amritsar.
2.
Fitting of furniture in the Drawing Room of the H. No. 231. Tilak Nagar, Amritsar.
3.
Renovation of factory at Bharat Nagar, Amritsar.
4.
Marriage of Seema d/o Shri
Banarasi Das for the purchase of Refrigerator, Colour Television, Scooter etc.
5.
That the above premises bearing H. No. 231, Tilak
Nagar, Amritsar, is in possession of Shri Sham Sunder,
Banarasi Das, Naresh Kumar
and Deepak Kumar and the factory at Bharat Nagar Amritsar is possessed by Shri Banarsi Das, Shri Sham Sunder and Shri Deepak
Kumar and Refrigerator, Colour Television and Scooter
are in possession of Smt. Seema.
On
the basis of the complaint dated 27-9-1999, the Judicial Magistrate 1st Class,
Amritsar, vide his order dated 3-11-1999, arrived at the conclusion that there
was sufficient evidence to proceed against the accused under Sections 406 and
420 of the Indian Penal Code. The trial Court accordingly summoned the accused
to face the trial under the aforesaid sections. The order of the Judicial
Magistrate 1st Class, Amritsar, dated 3-11-1999 has
been impugned through the instant petition by Smt. Seema daughter of Banarsi
Das.
3.
It is the case of the petitioner before this Court that the complainant had made
no reference to her in his first complaint dated 12-6-1999 and reference made to
her and the second complaint dated 27-9-1999 even if taken on its face value and
accepted as correct would be insufficient to fulfil
the ingredients constituting the offence under Sections 405 and 420 of the
Indian Penal Code.
4.
Section 405 of the Indian Penal Code is being extracted hereunder :-
405.
Criminal breach of trust :- Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriate 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, of 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.
A
bare perusal of the aforesaid section leads to the conclusion that to constitute
an offence of criminal breach of trust it is essential to prove first of all
that the accused was entrusted with some property or with any dominion or power
over it. It has to be estalished further that in
respect of the property entrusted, there was dishonest misappropriation, or
dishonest conversion, or dishonest use, or disposal in violation of the terms of
entrustment or violation of a provision of law. So far as the allegations made
in the complaint against the petitioner-Smt. Seema are
concerned, it is not even the case of the complainant himself that Smt. Seema had been entrusted the amount in the chit fund in any
manner directly or indirectly. It is also not the case of the complainant that
there was any agreement between the complainant and Smt. Seema in respect of the money deposited by him in the chit
fund. It is, therefore, obvious that the ingredients of the offence u/s 405 of
the Indian Penal Code are clearly not made out against Smt. Seema.
5.
The impugned order of the Judicial Magistrate 1st Class, Amritsar, requires her
to be proceeed against u/s 420 of the Indian Penal
Code. The aforesaid section is being extracted hereunder
:-
420.
Cheating and dishonestly inducing delivery of property
:- Whoever cheats and thereby dishonestly induces the person deceived to
deliver any property to any person, or to make, alter or destroy the whole or
any part of a valuable security, or anything which is signed or sealed and which
is capable of being converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend to seven years
and shall also be liable to fine.
Before
an offence of cheating dishonestly u/s 420 of the Indian Penal Code is made out,
it is necessary to establish that the accused must have cheated or dishonestly
induced a person to deliver property or a valuable security. Even in the
complaint, if taken on its face value and accepted as correct, it is not alleged
that the petitioner-Smt. Seema ever induced the
complainant Satish Sachdeva
to enrol as a member of the chit fund established by
Sham Sunder (who is admittedly her brother). Merely because Sham Sunder is
alleged to have purchased certain articles from the amount deposited by the
complainant-Satish Sachdeva
at the time of marriage of the pe-titioner-Smt. Seema, would not
make any difference insofar as the offence contemplated u/s 420 of the Indian
Penal Code is concerned, insofar as Smt. Seema is
concerned.
6.
Since the two complaints made by the complainant do not disclose the commission
of any offence either u/s 405 or 420 of the Indian Penal Code by the petitioner,
the order of the Judicial Magistrate 1st Class, Amritsar, dated 3-11-1999,
summoning her to face trial under the aforesaid sections is unsustainable and is
liable to be set aside. For the reasons recorded above, the order of the
Judicial Magistrate 1st Class, Amritsar, dated 3-11-1999, insofar as it relates
to Smt. Seema petitioners, is accordingly
quashed.
