Jharkhand High CourtAshok Kumar Singh Alias Vijay Singh vs The State Of Jharkhand And Anr on 14 May, 2013Author:R.R.PrasadBench:R.R.PrasadIn the High Court of Jharkhand at Ranchi

                         Cr.M.P.No.442 of 2013

              Ashok Kmar Singh @ Vijay Singh ......................Petitioner

                         VERSUS

                State of Jharkhandand another ...............Opposite Parties

                  CORAM: HON'BLE MR. JUSTICE R.R.PRASAD

                  For the Petitioner :Mr.R.S.Majumdar, Sr. Advocate
                  For the O.P.No.2 M/s.Manish Kumar & Someshwar Roy, Advocate

4/     14.5.13. Heard learned counsel appearing for the petitioner and learned

     counsel appearing for the opposite party no.2.This application is directed against the order dated 6.2.2013

     passed by the Sessions Judge, Bokaro in Cr.Rev.No.2 of 2013 affirming the

     order dated 21.12.2012 passed by the Judicial Magistrate,1st class, Bokaro in

     connection with Sector IV P.S case no.81 of 2009 whereby and whereunder

     prayer made for discharge was rejected.It is the case of the prosecution that this petitioner entered into the

     house of the informant, who happens to be the nephew of the petitioner.

     However, with the intervention of the well wisher, it was agreed upon that

     the petitioner would be staying in the said house and would be making

     construction of the house. It was also agreed in between the parties that the

     petitioner would be depositing certain amount with Balram Singh in lieu of

     staying in the said house. That amount, in fact, was deposited by the petitioner

     with Balram Singh which was supposed to be taken back by the informant but

     when the informant came to Balram Singh for taking money, it was told by

     Balram Singh that the petitioner had earlier come to him and took away the

     entire amount by saying that he will be giving the amount to the informant.On such allegation, a case was registered as Sector IV P.S. Case

     no.81 of 2009 underSections 406and420of the Indian Penal Code. Upon

     completion of investigation, when charge sheet was submitted, cognizance of

     the offence was taken. After appearance, an application was filed for discharge

     taking plea that no offence is made out either underSection 406or 420 of theIndian Penal Code. However, that application was rejected.
       Being aggrieved with that order, Revision application was preferred

which was also dismissed. Against that order, this application has been filed.Mr.R.S.Majumdar, learned Sr. counsel appearing for the petitioner

submitted that accepting the entire allegation to be true, no offence is made out

either underSection 406or 420 of theIndian Penal Codeas the petitioner has

never been alleged to have done anything fraudulently or dishonestly and in that

view of the matter, offence certainly does not get attracted.Upon it, Mr.Manish Kumar, leaned counsel appearing for the opposite

party no.2 submitted that it has agreed upon in between the parties that the

petitioner would be staying in his house and in lieu of that, he would be

depositing the money with the third person and in fact, it had been deposited but

when the petitioner went there to take the money, it was told by third person

Balram Singh that the petitioner had taken back the money by saying that he will

be giving it to him and thereby it can easily be said that it is a case of

misappropriation.In the context of the submission advanced on behalf of the parties, one

needs to take notice of the provision as contained inSection 415of the Indian

Penal Code which reads as under."Cheating - Whoever, by deceiving any person,
             fraudulently or dishonestly induces the person so
             deceived to deliver any property to any person, or to
             consent that any persons shall retain any property, or
             intentionally induces the person so deceived to do or
             omit to do anything which he would not do or omit if
             he were not so deceived and which act or omission
             causes or is likely to cause damage or harm to that
             person in body, mind reputation or property, is said to 'cheat".From its reading it appears that following ingredients should necessarily

 be there for constituting offence of cheating.(1) there should be fraudulent or dishonest
                    inducement by the person alleged to
                    have deceived the complainant.(2) (a) the person so deceived should be
                    induced to deliver any property to any
                    persons, or to consent that any person
                    shall retain any property or(b) the person so deceived should be
                     intentionally induced to do or omit to do
                     anything which he would not do or omit if
                       he were not so deceived.(3) in cases covered by 2(b) the Act or
                     omission should be one which causes or
                     is likely to cause damage or harm to the
                     person induced in bodily or reputation or
                     property.Thus, the first element necessary for constituting the offence of cheating

is a deception of the complainant by the accused. Unless there is deception, the

offence of cheating never gets attracted. After deception has been practiced the

persons deceived should get induced to do or omit to do something. Then, the

question arises as to what is the deception ?In the instant case there has been no allegation whatsoever that this

 petitioner did an act fraudulently or dishonestly inducing the informant to do an

 act, rather the case is that the informant on intervention of well wisher allowed

 the petitioner to stay in his house on a condition that the petitioner would pay

 money in lieu of staying in the house of the informant but that money was not

 paid to the informant. Therefore, there does not appear any allegation of

 informant being duped by the petitioner fraudulently or dishonestly.Similarly, offence underSection 406of the Indian Penal Code also does

 not get attracted.Criminal breach of trust has been defined inSection 405of the Indian

Penal Code which 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".On reading of the said provision, the following ingredients

should be there for constituting the offence underSection 405of the

Indian Penal Code."(a) a person should have been entrusted with property or
                 entrusted with dominion over property;(b)    that person should dishonestly misappropriate or
                      convert to his own use that property, or dishonestly
                      use or dispose of that property or willfully suffer any
                      other person to do so;(c )   that such misappropriation, conversion, use or
                      disposal should be in violation of any direction of
                      laws prescribing the mode in which such trust is to be
                      discharged, or of any legal contract which the person
                      has made, touching the discharge of such trust."

             In the background of the allegation made in the complaint, I do not find

      it a case of criminal breach of trust, rather it is a pure case of breach of

      agreement which could have been enforced in the competent court of civil

      jurisdiction.Under the circumstances, both the orders passed by the trial court

          as also by the revisional court are hereby set aside.In the result, this application is allowed.( R.R.Prasad, J.)
ND/