IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 694 of 2008 Ajay Kumar Saini …… Petitioner Versus Sukhvinder Singh and another …… Respondents …….. Mr. Sudhir Kumar Chaudhary, Advocate for the petitioner. Mr. D.S.C.Rawat, Advocate for the respondents. Hon’ble V.K. GUPTA, C. J. It is a very unique, peculiar and unfortunate case where a Judicial Officer throwing all norms of propriety to winds has exercised jurisdiction not vested in him, bordering on the abuse of the process of law as well as his position as a Judicial Officer. A pure and simple loan transaction was made the subject matter of a criminal complaint filed by the respondents against the petitioner. It is the admitted case of the respondents that on 31st August, 2006 an amount of Rs. 3,50,000/-(Rupees Three Lacs Fifty Thousand only) was taken on loan by the petitioner from the respondents and a receipt was executed on that date acknowledging the receipt of the aforesaid loan amount on 31st August, 2006 and undertaking to re-pay the same to the respondents before 31st September, 2007 and in case of failure, to pay compensation as well as expenses. The English translation of the aforesaid receipt executed on 31st August, 2006 attempted by me is reproduced hereunder which reads thus:- “ I, Ajay Kumar Saini s/o Chokhe Singh, am resident of Village Sitarampur, Tehsil Swar, District Rampur. For some essential work, I need some money. I am borrowing, at my free will and volition, a sum of Rs. 3,50,000/- (Rupees Three Lacs Fifty Thousand only) without any pressure from anyone from Sri Sukhvinder Singh s/o Sri Mahendra Singh r/o Raipur 2 Khurd, Tehsil Kashipur, District Udham Singh Nagar and Sri Baljeet Singh s/o Balkar Singh r/o Village Dhakiya Gulabon, Tehsil Kashipur. I shall return this amount to Sri Sukhvinder Singh and Sri Baljeet Singh by or before 30.09.2007. If I do not return this amount before the aforesaid date, I shall be liable to pay compensation as well as expenses. In witness whereof, I have executed this receipt today, the 31st day of August, 2006. Sd/- Ajay Kumar Saini Executant Witnesses: (1) Mohd. Akram s/o Nanhe r/o Gundawala, Tehsil Swar, Distt. Rampur. (2) Indra Singh s/o Vira Singh r/o Village Sitarampur, Tehsil Swar, Distt. Rampur.” Section 405 of the Indian Penal Code defines “Criminal Breach of Trust”. It reads thus: “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 discharges, 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”. Section 406 of the Indian Penal Code provides that whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. As per the plain reading of Section 405, entrustment to the accused of a property and his thereafter dishonestly misappropriating the said property or converting it to his own use, etc. etc., amounts to committing “criminal breach of trust”. A person obtaining loan from another, the loan transaction by its nature being unequivocal and categorical, cannot be said to be “entrusted with a property” and similarly, thereore, his neglect, failure or refusal to pay the said loan amount cannot in any manner amount to his dishonestly misappropriating or converting to his own use any property (In this case the loan amount). If such was the intention of the Legislature, in 3 this country every loan transaction pure and simpliciter would be treated to be a “criminal breach of trust”. That simply is not true. Far from it. A loan transaction is a pure, plain and simple transaction of a pure civil nature and, therefore, the refusal to repay the loan amount cannot amount to the commission of any offence under any law, much less an offence punishable U/s 406 I.P.C. Converting the aforesaid simple loan transaction into the commission of a criminal offence undoubtedly is a gross abuse of the process of law. The respondents by filing the aforesaid complaint against the petitioner have caused undue harassment and agony to the petitioner and have dragged the petitioner to avoidable litigation on the Criminal Side. Very very unfortunately, the learned Magistrate, either without any application of mind or knowingly, allowed himself to be used in passing a patently illegal order summoning the petitioner as an accused to stand trial for an offence u/s 406 I.P.C. even though the transaction forming the subject matter of the complaint was of a pure civil nature. Actually, I am more pained and amazed after going through the impugned summoning order dated 13.06.2008 to notice that in the second paragraph of the impugned summoning order, the learned Magistrate has wrongly (factually) and incorrectly recorded and observed that the petitioner had obtained this amount as an “entrustment” (Amanat in Hindi). This observation in the impugned order is contrary to the record because in the receipt executed on 31st August, 2006, the petitioner has simply used the words “ taking the amount on loan”. Use of the word “entrustment” (Amanat) in the impugned order despite the fact that it was non-existent in the Receipt perhaps indicates the functioning of the mind of the Court below resulting in the issuance of the aforesaid impugned order. This petition is allowed. The impugned order as well as the proceedings emanating from the complaint in question are quashed and set aside. Because the petitioner has been burdened with and dragged in the aforesaid litigation on the criminal side, the respondents are directed to pay 4 Rs. 25,000/- (Rupees Twenty Five Thousand only) to the petitioner as costs within two weeks from today. The Registrar General is directed to send a Communication to the Presiding Officer of the learned Court below to submit his explanation in the light of the comments made against him in this Judgment by me. The explanation shall be submitted within two weeks from the date of the receipt of the said communication from the Registry. The explanation, as and when received, shall be place on the Administrative Side for appropriate action. (V. K. Gupta, C.J.) 29.06.2009 A 5