IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.16333 of 2008
Farukh Ahmad @ Farooque Ahmad, son of Late Noor
Mohamad Resident of G 117, P.C. Colony, Kankarbagh,
P.S. Kankarbagh, District-Patna.
...................................................................Petitioner.
Versus
1. The State Of Bihar.
2. Syed Hasan, son of Late Syed Jafar Hussain, resident of
Capital Market, Muradpur, P.S. Kotwali, District-
Patna.
...................................................Opposite Parties.
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For the Petitioner : Mr. M.P. Bharti, Advocate.
For the State : Mr. Jharkhandi Upadhyay, A.P.P.
For O.P. No.2 : Mr. Sanjay Kumar, Advocate.
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O R D E R
7. 14.10.2011. The petitioner, Farukh Ahmad alias Farooque Ahmad,
has filed this application under Section 482 of the Code of
Criminal Procedure for quashing the order dated 8.1.2008 passed
by the Chief Judicial Magistrate, Patna, in Pirbahore P.S. Case
No.294 of 2004, Taking the cognizance of the offence under
Sections 406 and 420/34 of the Indian Penal Code against the
petitioner and the co-accused, Baiju and also the aforesaid
criminal proceeding.
2. The brief facts leading to this application is that the
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complainant-opposite party no.2, Syed Hasan, filed the complaint
case on 30.8.2004, numbered as Complainant Case No.2056(C)
of 2004, in the court of the Chief Judicial Magistrate, Patna, with
the allegation that he had let out the shop no.7A situated in
Capital Market, Muradpur, Patna, to accused-petitioner, Farukh
Ahmad alias Farooque Ahmad, through written agreement dated
11.11.1992 after taking Rs.15000/- as security money on
monthly rent of Rs.540/-. It was also agreed that after every
three years the rent will be enhanced 25 paise per squire feet and
in case of default of payment of monthly rent for two consecutive
months, the shop will have to be vacated by the accused-
petitioner. The petitioner, Farukh Ahmad alias Farooque
Ahamd, was tenant of the shop since 11.11.1992 and since
March, 1995 he avoided to pay the rent on false pretext. The
petitioner, Farukh Ahmad alias Farooque Ahmad and the co-
accused, Baiju time and again used to show their problem in not
paying the rent to the complainant-opposite party no.2 and had
assured him to pay the rent from March, 1995 to August, 2004,
amounting to Rs.72,000/- after selling the land. On 20.8.2004 in
the night at about 11 P.M., the complainant-opposite party no.2
came to know that the accused persons are removing the articles
from the shop and trying to flee away without making payment
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of arrears of rent. The complainant-opposite party no.2 went to
his shop and found that the accused persons had removed almost
all the articles from the shop and fled away without making
payment of arrears of rent Rs.72,000/-. Thereafter, the
complainant-opposite party no.2, put his own lock in the shop
and made request to the petitioner at his house to make payment
of the arrears of rent of the shop but he refused to pay the same
giving threat to kill him.
3. The complaint petition filed by the complainant-
opposite party no.2 was sent by the Chief Judicial Magistrate,
Patna, to the Pirbahore Police Station for investigation and,
accordingly, Pirbahore Police Station Case No.294 of 2004 was
instituted on 8.10.2004 under Sections 406 and 420/34 of the
Indian Penal Code against the petitioner, Farukh Ahmad alias
Farooque Ahmad and the co-accused, Baiju, named in the
complaint petition. The police on investigation submitted the
chargesheet in the court of the Chief Judicial Magistrate, Patna,
who on perusal of the case diary and chargesheet took the
cognizance of the offence under Sections 406 and 420/34 of the
Indian Penal Code against them.
4. Learned counsel appearing on behalf of the petitioner
submits that the petitioner had paid the rent regularly till the
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vacation of the shop on 5.12.1996 and when the petitioner
demanded the security money Rs.15,000/- from the complainant-
opposite party no.2 as deposited, as per the terms of agreement
dated 11.11.1992, the complainant-opposite party no.2 did not
return the security money and filed this complaint case on false
pretext only to grab the security money Rs.15,000/- as given by
the petitioner. It is also submitted that from perusal of the
complaint petition, dispute appears to be non payment of the rent,
which is civil in nature.
5. It appears from the complaint petition (Annexure-„1‟
to this application) that the allegation against the petitioner is that
he vacated the shop as let out by the complainant-opposite party
no.2 without paying the rent Rs.72,000/- as was due since March,
1995 to August, 2004.
Section 406 of the Indian Penal Code relates to the
punishment for criminal breach of trust which is defined in
Section 405 of the Indian Penal Code and Section 420 of the
Indian Penal Code relates to the cheating and dishonestly
inducing delivery of property. Sections 405 and 420 of the
Indian Penal Code are read as under:
“405. Criminal breach of trust.- Whoever, being in
any manner entrusted with property, or with any dominion over
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property, dishonestly misappropriates or converts to his own
use that property, or dishonestly uses of 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 wilfully suffers any other person so
to do, commits “criminal breach of trust”.
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.”
6. On reading the averments made in the complaint
petition in their entirety and accepting the allegations to be true,
the ingredients constituting the offence under Sections 406 and
420/34 of the Indian Penal Code are lacking as there is no
averment that the complainant-opposite party no.2 entrusted the
property which was dishonestly misappropriated or converted for
use in violation of direction or legal contract or the accused-
petitioner had fraudulent and dishonest intention to cheat the
complainant-opposite party no.2 at the time of making the initial
promise. From the complaint petition, which is the basis of the
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F.I.R., the dispute appears to be non fulfillment of the terms of
the agreement, which is civil in nature. As such, the taking of
cognizance of offence under Section 406 and 420 of the Indian
Penal Code through the impugned order appears to be an abuse
of the process of the court.
7. Accordingly, the impugned order dated 8.1.2008
passed by the Chief Judicial Magistrate, Patna, in Pirbahore
P.S. Case No.294 of 2004 and the criminal proceeding of the
aforesaid case with respect to the petitioner are hereby quashed
and the application is allowed.
(Rajendra Kumar Mishra, J)
P.S.