IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1072 of 2009
Meena Devi ... ....Petitioner
Vs.
1. The State of Jharkhand
2. Krishna Ram ....Opposite Parties
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioner: Mr. Brij Bihari Sinha
For the State: Mr. Prem Prakash, APP
For the O.P. No. 2: Mr. Binod Kumar
8/20.10.2011
: This revision is directed against the judgment dated
27.8.2009 passed by 1st Additional Sessions Judge, Bokaro in Cr.
Appeal No. 30 of 2009, whereby he set aside the judgment of
conviction and order of sentence passed by Judicial Magistrate, 1st
Class Bokaro in G.R. No. 210 of 2004 and acquitted the petitioner from
the charge levelled against him.
From perusal of record, it appears that informant’s
husband has given Rs. 1,00,000/- to the accused as a loan for the
purpose of business. It is alleged that the accused did not return
aforesaid amount. Though he promised to return Rs. 50,000/- after
three months. It is alleged that accused/petitioner misappropriated
said amount. Accordingly present case filed for punishing petitioner
under section 406 of the IPC.
The learned appellate court after considering the
materials available on record come to the conclusion that no offence
under section 406 of the IPC is made out.
Learned counsel for the petitioner submits that if a loan
given with specific stipulation that same will be returned within a
certain period and if same is not returned by that period, then the
section 406 of the IPC became applicable. Section 405 of the IPC
defines criminal breach of trust. From the plain reading of the said
definition, if any property is entrusted to any other person and that
person to whom it was entrusted, has not returned and
misappropriated it, then the offence of criminal breach of trust is made
out.
Having heard the submission I have gone through the record.
Section 405 of the Indian Penal Code defines criminal breach of trust
which runs 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,
-2-or wilfully suffers any other person so to do, commits
“criminal breach of trust”.
Thus one of the essential condition of criminal breach of trust is
that the property must be entrusted to another person. Thus section
requires that some kind of trust be created by complainant. In other
words ownership of such property must remain in complainant,
whereas accused must hold such property on trust for the
complainant.
In this case admittedly, informant’s husband gave Rs. 1,00,000/-
to the accused as loan for business. Thus the money was given to the
accused with clear stipulation that he will use the same for his own
purpose. Thus, in this case accused( Petitioner) was not holding the
property as trust created by informant’s husband. Under the said
circumstances act of giving loan does not come within the purview of
entrustment.
A similar view was taken by Orissa High Court in Satyabrata
Bhattacharya Vs. Jarnal Singh , reported in 1976 Cr. L.J. 446. It is
apposite to quote paragraph no. 5 of said judgment:-
“Similarly there is no offence under Section 406, I.P.C.
Section 405 , I.P.C. defines a criminal breach of trust.
Giving a loan to somebody for accommodating a person to
have money for certain time is not entrustment of money
with a direction that the money would be utilized in a
particular manner. Failure to pay back a loan or a debt
does not amount to dishonest misappropriation of the
money or dishonest conversion of the same towards his
own use. Doubtless the opposite party was deprived of
the money beyond the time during which it was stipulated
to be paid back. But inability on the part of the debtor to
pay up does not amount to dishonest misappropriation.
No offence under section 406 I.P.C. is also made out”.
In view of above discussion, I am in total agreement with
the view of learned appellate court that no offence under section 406
of I.P.C. is made out.
Under the aforesaid facts and circumstances, I find no
illegality, in the impugned judgment. Accordingly, this revision
application is dismissed.
( Prashant Kumar,J.)
Sharda/-