IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.8191 of 2009
1. Ghanshyam Prasad Gupta, son of Late Deep Narain Lal Gupta.
2. Pappu Kumar Gupta, son of Ghan Shyam Prasad Gupta.
Both resident of Mohalla- Mohdinagar, P.S.;_ Mojahidpur,
in the town and District of Bhagalpur.
........Accused..Petitioners.
Versus
1. The State of Bihar.
2. Manohar Sah, son of Late Devi Lal Sah, resident of Mohalla-
Mohdinagar, P.O.- Mirjanhat, P.S.:- Mojahidpur, in the
Town and District- Bhagalpur.
.....Complainant...Opposite Parties.
For the petitioners :- Mr. Ashutosh Jha, Advocate.
Mr. Bijay Kant Mishra, Advocate.
Mr. Narendra Pandey, Advocate.
For the State :- Mr. H. A. Khan, A.P.P.
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06. 2. 02.2011. This criminal miscellaneous petition has been
filed for quashing the order dated 14. 01. 2009 passed
by Sri Gulam Goss, Judicial Magistrate, Bhagalpur, in
Complaint Case No. 118 of 2008/T.R. No. 1703 of 2009,
by which learned Judicial Magistrate has taken
cognizance for offence under Sections 420, 406 and 468
of the Indian Penal Code.
2. The prosecution case as alleged in the
complaint petition that accused Ghanshyam Prasad
Gupta took the complainant in the pretext for treatment
by enticing him, to Sub Registry office at Bhagalpur and
get power of attorney executed on 02. 11. 2007 vide
Document No. 449 of 2007 with regard to land and
house standing therein in Ward No.. 35 New 50, Khata
No. 475, Plot No. 1187 area 4.19 decimal. It
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is further alleged that Ghanshyam Prasad Gupta after
execution of the deed started threatening him to oust
from the house. The complainant executed deed of
cancellation on 10. 12. 2007. On getting knowledge of
cancellation, accused no. 1, 2 and 3 came and
threatened that he has executed sale deed with regard
to the land in the name of wife on 14. 12. 2007 by
registered sale deed and asked to vacate the house. It
has further been alleged that complainant went to the
Registry office, but the certified copy of the said
registered sale deed of the land showing that said deed
has been executed showing consideration money of
Rs.2,05,000/- and Rs. 1,20,000/- has been paid by two
cheques, one cheque Rs. 40,000/- and other cheque Rs.
45,000/- has been paid which is palpably false as the
complainant has no account in any Bank and neither
cash nor cheque has been paid and cheque number
appears to be forged and fabricated. It has further
been alleged that complainant went to the house of the
accused persons to make an enquiry then accused
persons 1, 2 and 3 abused and throw him out
by slaps and fists. On the complaint petition, the
complainant examined on solemn affirmation and
witnesses also examined on behalf of the complainant
and taking into consideration witnesses of the
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complainant and his witnesses, summon ordered to be
issued against accused persons after taking cognizance
under Sections 406, 420 and 468 of the Indian Penal
Code.
3. Learned counsel for the petitioners has
challenged this order on the ground that no offence is
made out and in the interest of the justice to permit the
prosecution to continue as the allegation made is
predominantly a civil wrong and may be abused of the
process of Court as it does not make out a criminal
offence and placed reliance upon decision reported in
1988 SC page 709 and 2007 (4) PLJR page 184.
4. Learned counsel for the State submits that
offence as alleged makes out an offence if an offence is
made out criminal prosecution can not be quashed
merely on the ground than a civil remedy is also
available as the criminal prosecution and civil remedy
can ran together.
5. However, on the respective submissions of
the parties, question for consideration whether order
taking cognizance is sustainable.
6. However, taking into consideration the
allegation made in plaint that Ghanshyam Prasad
Gupta on the pretext of treatment taking the
complainant to the Sub Registry office by enticing him
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and get power of attorney executed and thereafter,
threatened oust him with regard the lands and in
consequence, the complainant got the deed of
cancellation of power of attorney executed on
18.12.2007, whereas the sale deed have been executed
by the accused on 14. 12. 2007 in favour of his wife and
son.
7. However, the power of attorney mentions
Clause ‘Ga’ that if necessity arise then the accused shall
sell the land and will gave the sale proceed to the
complainant but the accused sold the land in the name
of his son and wife and did not pay the sale amount,
though, made false averment in sale deed about
payment of consideration amount as alleged in
complaint itself, makes out an offence of criminal
breach of trust when amount made in sale deed that
part of consideration money paid by cheque whereas
complainant asserted that he has no account in any
Bank.
8. However, taking into consideration the
entire allegation, it is apparent that power of attorney
itself executed by deception and further after execution
of the power of attorney, sale deed was executed by
Ghanshyam Prasad Gupta in favour of his wife and son
and even the sale proceed not paid, apparently shows
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unlawful loss to the claimant and unlawful gain to the
accused and his family i.e. wife and son of Ghanshyam
Prasad Gupta.
9. Having taking into consideration of the
allegation made itself give a smell for breach of trust
simultaneously resulting unlawful gain to the accused
and unlawful loss to the complainant. It has further
been alleged that land was sold, but the money has not
been paid and hence it amounts to breach of trust
depose and repose in the accused Ghanshyam Prasad
Gupta to sale the land and money be made available the
executant Manohar Sah. However, allegation itself,
money has not been paid and hence, allegation made in
the complaint is the clear case of breach of trust and
breach of trust would simultaneously to be a civil wrong
and criminal offence and if allegation on the complaint
on the face value of the allegation itself makes out an
offence on the basis of the allegation in the complaint,
then order taking cognizance by the Magistrate is
sustained.
10. Learned counsel for the petitioners relied
upon decision reported in 1988 SC page 711. However,
under facts and circumstances of the case, a trust was
created and four trustees including the settler and his
son, house and trust property was given in tenancy to
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the wife to the son of the settler and a complaint filed
by one of the trustee for offence under Sections 406 and
467 and even notice issued on behalf of the trust calling
upon and wife and son of the settler in whose name, the
tenancy created to surrender tenancy and wife of the
said trustee volunteered to surrender the tenancy and
in such circumstance it was submitted that there was
no justification for initiation of the criminal proceeding
and under the facts and circumstance Supreme Court
took the view that case was one type where if at all the
facts made constitute civil wrong and ingredients of
criminal offence rather wanting and held that criminal
case can not continue.
11. However, under the facts and
circumstances of the allegation made in the case at
hand, the allegation makes itself smell inducement and
deception as well as breach of trust as illegal gain and
illegal loss. Hence, under the facts and circumstances,
principle initiated in decision reported in A.I.R. 1988 SC
709 is not applicable to the facts and circumstances of
the case.
12. However, with regard to the case reported
in 2007 (4) PLJR 185, the appellant was an authorized
dealer of Hindustan Lever Limited and required to
deliver Form IX-C prescribed in terms of Bihar Sales
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Tax Rules and a complaint was filed alleging for offence
under Sections 427, 384 and 420/34 of the Indian
Penal Code. Cognizance was taken and against that
cognizance under the facts and circumstances of the
case, as it was not disputed that the appellant was a
Redistribution Stockist carried on commercial
transactions and till 1998-99 , the complainant raised
no grievance for non-supply of Form IX-C and was
compelled to continue the business despite non-supply
of Form IX-C and in this facts and circumstances held
that non-issuance of the said form ex-facie cannot give
rise to commission of any offence and it has been held
that under the facts and circumstances of the case,
there is no element of outstands and that view caused
in wrongful loss and in wrongful gain for themselves.
13. However, having regard to the facts and
circumstances in the allegation that accused persons
took the victim in the pretext of his treatment and got
the deed of power of attorney executed, though, with
condition if necessity arise he will sell and to pay sale
proceed to the complainant. It is further alleged that
after execution of the deed, accused persons thrown out
and when the complainant shown his intention to
cancel and got it cancelled on 18. 12. 2007 and prior to
that on 14. 12. 2007, sale deed was executed in the
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name of wife and son and further allegation that even
consideration amount as mentioned in the sale deed
has not been handed over to the complainant and
hence apparently an offence of breach of trust is made
out taking into consideration the facts and
circumstances there is apparently false pretext and
deception and further breach of trust causing unlawful
gain to the accused persons and unlawful loss to the
complainant and hence taking into consideration the
entire allegation, there is allegation of the face value
makes out an offence, Hence I do not find to interfere
with the impugned order and hence the petition is
hereby dismissed.
m.p. ( Gopal Prasad, J.)