Dr.B.P.Kashyap Vs. State of Jharkhand and Anr. - Court Judgment

In the High Court of Jharkhand at Ranchi Cr.M.P.No.1175 of 2006 Dr.B.P.Kashyap,son of late Bharat Prasad Kashyap, resident of Purulia Road, P.O.Lalpur, P.S.Lower Bazar, Dist – Ranchi………………Petitioner VERSUS1 State of Jharkhand 2. Atul Kumar Agrawal, son of late Ajay Kumar Agrawal, resident of 17/2, Basant Vihar, Kanke Road, P.O.Kanke, P.S.Gonda, Dist-Ranchi........................................Opp. Parties CORAM: HON’BLE MR. JUSTICE R.R.PRASAD For the Petitioner: M/s. V. Shivnath, Sr. Advocate, Ravi Prakash and Birendra Kumar, Advocate For the O.P.No.2: Mr. Pandey Neeraj Rai, Advocate Reserved on 18.6.2015 Delivered on 03.7.2015 15. 03.7.15. This application has been filed for quashing of the entire criminal proceeding of Complaint Case No.328 of 2005 including the order dated 25.7.2005 whereby and whereunder the court having satisfied that sufficient materials are there to proceed against the petitioner for the offence punishable under Section 406 of the Indian Penal Code issued summons to the petitioner. The case of the complainant as has been made out in the complaint petition is that in the month of April, 2004 when the petitioner offered invitation for construction of a building of Kashyap Vision Care Hospital, Purulia Road, Ranchi, it was accepted by the complainant and thereby the complainant was allowed to take up the construction work on the terms and condition agreed upon. Thereafter the complainant purchased machineries worth Rs.3,74,260.75 related to the construction work and brought it to the site of the work under security cover provided by the accused. The complainant when started construction work, payments were made time to time upon bills being raised. The petitioner was never dissatisfied with the quality of the work, still on 17.9.2004 the petitioner asked the complainant to stop construction work without letting him know about the reason. The complainant tried to meet the petitioner but he failed. Ultimately on 25.9.2004 when he met with the petitioner and enquired about the reason for cancelling the contract, the petitioner did not give any satisfactory reply, rather asked him to go away. Thereupon he came to work site to take his machineries back but the Munshi of the petitioner did not allow to take them away. After a week i.e. 3.10.2004, when the petitioner along with the witnesses came to work site, they were shocked to find that the accused were using and operating machineries which had been kept there. Thereafter when the complainant met the accused to permit him to take his machineries, the accused refused to allow the complainant to take the machineries. Lastly on 18.3.2005 when the complainant again came to the work site, he requested the security guard to allow him to take the machineries but they not only refused to allow him to take machineries but also extended threat of being assaulted. Thereupon the complainant came to the Lower Bazar Police Station for lodging a case but the Officer-in-Charge refused to lodge the case and in that event, a complaint was lodged with the allegation that the accused committed offences punishable under Sections 406 and 420 of the Indian Penal Code. 3 The complainant was examined on solemn affirmation whereupon the case was taken for enquiry under Section 202 of the Indian penal Code, during which the witnesses were examined. Thereupon the court passed an order on 25.7.2005 whereby the court, having found sufficient materials to proceed against the petitioner for the offence punishable under Section 406 of the Indian Penal Code, issued summon against him. Being aggrieved with that order, this application has been filed. Mr.V.Shivnath, learned Sr. counsel appearing for the petitioner submits that it is the case of the complainant that the complainant on being awarded with the construction work purchased certain machineries and brought it to the work site under security cover provided by the accused. Those machineries, on contract being terminated, were not allowed as per the case of the complainant to be taken by the accused persons rather it were found being used by the accused persons. Even if this allegation not allowing the complainant to take his machineries rather it were being used by the petitioner is accepted to be true, the petitioner cannot be said to have committed offence punishable under Section 406 of the Indian Penal Code as the petitioner in view of the case, which has been made out, cannot be said to have been entrusted with the said machineries or entrusted with its dominion which is one of the main ingredients for constituting offence in terms of Section 405 of the Indian Penal Code and thereby the impugned order being bad is fit to be set aside. 4 As against this, Mr. Pandey Neeraj Rai, learned counsel appearing for the opposite party no.2 submits that in view of the case being made out by the complainant that the complainant having purchased the machineries brought it to the work site for its use in the construction of the building over the land and thereby the machineries were under complete control of the petitioner, the petitioner cannot deny that he was not having any dominion over the property as the meaning of dominion as has been given in Black’s Law Dictionary, 8 th Edition is control/possession which the petitioner was certainly having once the machineries were put in at the work site. He further submits that in any view of the matter the case under Section 403 of the Indian Penal Code is made out as the petitioner has been alleged to have been using the machineries for their own purpose and thereby this application is devoid of any merit and is fit to be dismissed. Thus, the question does arise as to whether an offence of criminal breach of trust as has been defined under Section 405 punishable under Section 406 of the Indian Penal Code, is made out or not Section 405 of the Indian Penal Code reads as follows:

“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 willfully suffers any other person so to do, commits “criminal breach of trust.” 5 In order to make out a case of criminal breach of trust the following ingredients are necessarily to be there. (1)entrusting any person with property, or with any dominion over property (2)the person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so as to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. Thus, it is evident that before a person is said to have committed criminal breach of trust within the meaning of Section 405 of the Indian Penal Code, it must be established that there was either entrustment or entrustment with dominion over the property to a person which is converted to his own use. According to Mr.V. Shivnath, learned Sr. counsel appearing for the petitioner, the petitioner is being prosecuted for the offence of criminal breach of trust as the machineries which were brought by the complainant for its use in constructing building, cannot be said to have been entrusted to the petitioner nor is said to have been entrusted to the petitioner with dominion over it and thereby one of the main ingredients is lacking. However, the stand which has been taken by learned counsel appearing for the opposite party no.2 is that as soon as the machineries were brought to the site for construction of the building, the possession or control over the said machineries was incidently with the petitioner being owner of the land, it can easily be said that the petitioner was entrusted with dominion over the said machineries. 6 Thus, the question does arise as to whether the petitioner in the facts and circumstances can be said to have been entrusted with the machinery or with any dominion over the machinery In order to find out the answer, the fact of the case needs to be taken notice of. It is the case of the complainant that after the work of construction of building was awarded to the complainant, the complainant brought the materials and also machineries at the work site and kept it under the security cover provided by the accused. In that view of the matter, the petitioner may have some sorts of control but that control, in view of the case of the complainant, was not on account of any entrustment of the property. In order to establish “ entrustment of dominion” over property to an accused person, the mere existence of dominion over the property is not enough. It must be further shown that this dominion was the result of entrustment which proposition has been laid down by the Hon’ble Supreme Court in a case of Velji Radhavji Patel vs. State of Maharashtra (AIR1965SC1433. Thus, in the facts of the case that the machineries were kept at the site for the purpose of its use by the complainant, the petitioner cannot be said to have been entrusted with dominion over the machineries. Accordingly, I do find that one of the ingredients for constituting offence of criminal breach of trust is lacking and thereby the court certainly committed illegality in taking cognizance of the offence punishable under Section 406 of the Indian Penal Code instead of offence under Section 403 of the Indian Penal Code which offence in view 7 of the allegation made in the complaint that the machineries were being used by the petitioner, the offence under Section 403 of the Indian Penal Code prima facie gets attracted. Accordingly, order taking cognizance is modified to the extent indicated above. Thus, with the aforesaid modification in the order impugned, this application stands disposed of. Before parting with this order, it be observed that any finding recorded for the purpose of disposal of this case shall not be prejudicial to the case of the parties. (R.R.Prasad, J.) ND/