1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2203/2008 1 Anil s/o Banarasidas Jindal, Age : 37 years, Occu. Business, R/o Anand Nagar, College Road, Jalna, Tal. & Dist. Jalna. ...Deleted. 2 Sau. Anita w/o Anil Jindal, Age : 37 years, Occu. Agriculture & Household, R/o As above. 3 Jaibhagwan s/o Banarasidas Jindal, Age : 40 years, Occu. Business, R/o As above. 4 Naresh s/o Banarasidas Jindal, Age : 35 years, Occu. Business, R/o As above. 5 Shobadevi w/o Jaibhagvan Jindal, Age : 38 years, Occu. Business, R/o As above. 6 Geerta Banarasidas Jindal, Age : 58 years, Occu. Business, R/o As above. ...Applicants 2 to 6. Versus 1 The State of Maharashtra, through P.I. Kadim Police Chauki, Jalna. 2 Dr. Gangadhar s/o Vithoba Kayande, Age : 42 years, Occu. Reader, R/o 15/3 Pancham, Sawarkar Nagar, Gangapur road, Nashik-13. ...Respondents. Applicant No.1 deleted. Mr. Vijay Sharma, Advocate for applicants. No.2 to 5. Mr. T.S. Lodhe, A.P.P. for respondents No.1. Mr. P.R. Katneshwarkar, Advocate for respondent No.2 2 WITH CRIMINAL APPLICATION NO. 2227/2008 Banarasidas s/o Ramkishan Jindal, Age : 60 years, Occu. Business, R/o Anand Nagar, College Road, Jalna Tal. & District Jalna. ...Applicant. Versus 1 The State of Maharashtra, through P.O. Kadim Police Chauki, Jalna. 2 Dr. Gangadhar s/o Vithoba Kayande, Age : 42 years, Occu. Reader R/o 15/3 Pancham, Sawarkar Nagar, Gangapur road, Nashik-13. ...Respondents. Mr. Vijay Sharma, Advocate for applicant. Mr. T.S. Lodhe, A.P.P. for respondent No. 1/State. Mr. P.R. Katneshwarkar, Advocate for respondent No.2 CORAM : A.V. NIRGUDE, J Date : 19th October, 2010. ORAL JUDGMENT:- 1 Both these applications made under Section 482 of the Code of Criminal Code, can be decided by this common judgment because they seek to get quashed the Regular criminal case No. 238/2008 pending before the learned Judicial Magistrate (First Class), Jalna. 2 The respondent No.2 filed the case alleging offence punishable under Section 120, 406, 405, 468, 460, 474, read with Section 34 of the Indian Penal Code etc. 3 3 The gist of the complaint of the respondent No.2 can be narrated as under. One Banarasidas(hence forth be referred as Banarasidas) the applicant in Application No.2227/2008, the applicants(hence forth be referred to as other applicants) in other application No.2203/2008 who are members of his immediate family owned certain lands at village Pir Kalyan Tq. and District Jalna. The respondent No.2 and his brother in law one Ramesh decided to purchase these lands from Banarasidas and his family members. Banarasidas in turn agreed to sell those lands to these purchasers. Accordingly, an agreement was executed between Banarsidas on one hand and the respondent No.2 and his brother in law Ramesh on the other. It was agreed between the parties that the respondent No.2 would purchase 32 acres land @ Rs.20,000/- per acre and Ramesh would purchase 20 acres land. 4 The respondent No.2 alleges that he handed over Rs.640000 the entire consideration of the land which he was interested in purchasing, to Banarasidas and Anil the deceased applicant in Application No.2203/2008. He alleged further that despite this Banarsidas, Anil and the other applicants dishonestly used this amount entrusted to them with connivance of Ramesh and his wife Shila for executing sale deeds of the lands (meant for the respondent No.2) to Ramesh and his wife Shila. It is his case that Ramesh and his wife Shila had not paid the amount of consideration of the land which they thus purchased from Banarasidas and other applicants. The respondent No.2 4 alleged that Banarasidas, and the other applicants on one hand and Ramesh and his wife Shila on the other conspired to deceive him and to commit criminal breach of trust of the amount which he had entrusted with the other applicants and Banarasidas. 5 After lodging of this complaint, the respondent No.2 sought an order of investigation by the Police under Section 156(3) of the Code of Criminal Procedure. The order was passed accordingly and the case was sent for investigation to the Police. The Police after investigation filed a charge sheet against the applicant Banarasidas, the other applicants, Ramesh and his wife Shila. These applications are filed rather belatedly with an assertion that even if the allegations are accepted as truthful, they would not amount to an any offence. He placed reliance on the Supreme Court judgment in the case of State of Hariyana Versus Chaudhari Bhajanlal reported in A.I.R. 1992 Supreme Court 604. The Supreme Court in this judgment indicted few categories of cases under which the High Court would be able to use its powers under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution of India for quashing of the complaint to prevent abuse of process. One such category is where the allegations made in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out case against the accused. 6 In this case, admittedly the agreement that took place between the respondent No.2 and Ramesh on one 5 hand, was with only Banarasidas and not with the other applicants. Pursuant to this agreement, the respondent No. 2 alleged, he entrusted his amount to Banarasidas and his son Anil. He accused them of committing breach of trust in respect of the said amount. Assuming the other applicants had received the amount from the respondent No.2 could they have committed the offence of criminal breach of trust? 7 The definition of the term a criminal breach of the trust is mentioned in Section 405 of the Indian Penal Code. It reads as under. 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”. 8 For the discussion of this case, only following portion of Section 405 would be useful. It is as under:- “Whoever, being in any manner entrusted with property, dishonestly uses that property in violation of any legal contract express or implied which he has made touching the discharge of such trust commits criminal breach of trust.” 9 Apparently the other applicants had not made any legal contract expressly or impliedly with the respondent No. 2. So, assuming they had received the amount from respondent No.2 and assuming they allowed the amount so deposited with them to be used for execution of sale deeds 6 of the lands in favour of Ramesh or his wife, they would still not come within the mischief of Section 405 Indian Penal Code. As said above, the respondent No.2 did not have any legal contract express or implied with the applicants. Shri Katneshwarkar asserted that since the other applicants are members of the family of (the main accused) Banarasidas against whom the provisions of Section 405 Indian Penal Code can be made applicable and since Banarasidas acted for himself and also for the applicants, the applicants impliedly came under obligation of the legal contract. He asserted that they are thus covered by the provisions of Section 405 of Indian Penal Code. I am afraid, this argument is rather far fetched. No doubt, Banarasidas in the agreement stated that he was acting for himself and also for his family members including applicant but there is nothing on record to show that he had authority to act on behalf of his family members who were independent owners of various pieces of lands. So, I have no doubt that the other applicants could not come within the four corners of Section 405 of Indian Penal code. 10 As indicted above, it is only Banarasidas who would come within the ambit of Section 405 of Indian Penal code. It can therefore, be said that prima facie accused Banarasidas, Ramesh and his wife Shila had intention to dishonestly use the amount of the respondent No.2 and could be accused of committing offence under Section 406 read with section 34 of Indian Penal Code. But they can not be accused of offences punishable under Section 420 or under Section 120-B of Indian Penal Code or under Section 7 468, 469, 474 of Indian Penal code. The applications should therefore, succeed as under: ORDER A) The Criminal application No.2203/2008 is allowed. B) The regular criminal case No.238/2007 as against accused No. 4 to 9 stands quashed and set aside. C) The Criminal application No. 2227/2008 filed by applicant Banarasidas stands dismissed. D) At the request of Mr. Sharma learned advocate appearing for the applicant Banarasidas, the stay shall continue for six weeks from the date of signature on the judgment. Sd/- [A.V. NIRGUDE, J.] ts k/ok 15/11/10