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Friday, September 5, 2014

Sec.420 and 406 I.P.C . - Charge sheet against the accused - High court quashed the case as the ingredients attracts sec.379 of I.P.C - Apex court held that We do not propose to examine the correctness of the findings recorded by the High Court in an enquiry that there was no entrustment of money.The High Court, in our opinion, grossly erred in quashing the proceedings against the respondents with a certificate that it is one of the rarest cases where the court is required to quash the proceedings. Whether the respondents are guilty under Section 379 IPC or not is a matter of evidence. The fact that the police chose to file a chargesheet under Section 406 and 420 IPC is not conclusive regarding the offences for which the respondents-accused are to be tried. The trial Court can always frame an appropriate charge if there is sufficient material from the report of the police available before it. In case where the material is insufficient to frame a charge, the trial Court may either discharge the accused or may direct further investigation in the matter. Before deciding as to which one of the three courses of action mentioned above is to be resorted to, the trial Court must examine the content of the complaint, the evidence gathered by the investigating agency and also scrutinize whether the investigating agency proceeded in the right direction. We, therefore, allow the appeal and set aside the impugned order.= CRIMINAL APPEAL NO.1838 OF 2014 [Arising out of SLP(Crl.) No.4540 of 2013] Ghanshyam Sharma …Appellant Versus Surendra Kumar Sharma & Ors. …Respondents = 2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41859

    Sec.420 and 406 I.P.C . - Charge sheet against the accused - High court quashed the case as the ingredients attracts sec.379 of I.P.C - Apex court held that We do not propose to examine the correctness of the findings  recorded by the High Court in an enquiry that there  was  no  entrustment  of  money.The High Court, in our opinion,  grossly  erred in quashing the proceedings against the respondents with a certificate  that it is one of the rarest cases where the  court  is  required  to  quash  the proceedings. Whether the respondents are guilty under Section 379 IPC or not  is  a matter of evidence.   The fact that the police chose to  file  a  chargesheet under Section 406 and 420 IPC is not conclusive regarding the  offences  for which the respondents-accused are to be tried.   The trial Court  can  always frame an appropriate charge if there is sufficient material from the  report of the  police  available  before  it.     In  case  where  the  material  is insufficient to frame a charge, the trial Court  may  either  discharge  the accused or may direct further investigation in the matter.  Before  deciding as to which one of the three courses of action  mentioned  above  is  to  be resorted to, the trial Court must examine the content of the complaint,  the evidence gathered by the investigating agency and  also  scrutinize  whether the investigating agency proceeded in the right direction. We, therefore, allow the appeal and set aside the impugned order.=

 On 11.7.2009, the appellant complained to the police that  the  father
of the contesting respondents herein had  called  the  appellant  herein  on
telephone and asked the appellant to make the payment of the balance  amount
to  the  first  respondent  herein.   Accordingly,  the   first   respondent
approached the appellant.  Both of them went to the bank in a car  belonging
to the  first  respondent  wherein  the  appellant  withdrew  an  amount  of
Rs.16,68,000/-.  Both of them proceeded to the house of the  father  of  the
respondents.  When they were about to enter the house, the first  respondent
insisted that the  appellant  leave  the  money  in  the  car  itself.   The
appellant left the money  in  the  car  and  went  into  the  house  of  the
respondents.  While the appellant and the father  of  the  respondents  were
discussing, the first respondent went out of the house and returned after  a
while to inform the appellant that the glass of the vehicle, in which  money
was kept, was broken and the money was stolen.

6.    In the abovementioned background, the  appellant  lodged  a  complaint
with the police praying that action be taken against the respondents.

7.    The police  investigated  the  case  and  filed  a  chargesheet  under
Section 406 and 420 IPC.= 

The High Court opined that there was no entrustment of  the  money  in
the instant case and at best it was a case of theft  falling  under  Section
379 IPC.
      “What is being alleged in the present case is  that  the  money  which
was carried by the complainant for discharge of  his  liability  for  paying
remaining sale consideration which amount was kept in the vehicle  owned  by
the applicants.  There was no specific agreement between the  applicant  and
the accused persons for creation of dominion for  the  said  property  which
could constitute an entrustment.  Even the dominion over  the   property  is
not being reflected in the  statement  of  the  witnesses  as  also  of  the
complainant.  All that is said that the money was kept in the vehicle  which
was found missing after the complainant  and  applicants  came  out  of  the
house of one of the applicants.  By any stretch of imagination it cannot  be
said that the  property  was  entrusted  to  the  accused  persons.   It  is
admitted case of the persons that the  money  was  found  missing  from  the
vehicle.  The question of misappropriating of the  same  as  such  does  not
arise.  There is no evidence on record that the said money was taken by  the
accused.  The money was found missing from the vehicle.  This  at  best  can
be an offence under Section 379.  In view of this, I do not find any  reason
to allow the proceedings to continue. Since both the offences under  Section
420 and 406 are not made out, it is one of the rarest cases where the  court
is required to quash the proceedings.”

10.   We do not propose to examine the correctness of the findings  recorded
by the High Court in an enquiry that there  was  no  entrustment  of  money.
The fact remains that the appellant lost money which was kept in the car  of
the first respondent.  Even according to the  High  Court,  the  case  would
fall under Section 379 IPC.
The High Court, in our opinion,  grossly  erred
in quashing the proceedings against the respondents with a certificate  that
it is one of the rarest cases where the  court  is  required  to  quash  the
proceedings.

11.   Whether the respondents are guilty under Section 379 IPC or not  is  a
matter of evidence.  
The fact that the police chose to  file  a  chargesheet
under Section 406 and 420 IPC is not conclusive regarding the  offences  for
which the respondents-accused are to be tried.  
The trial Court  can  always
frame an appropriate charge if there is sufficient material from the  report
of the  police  available  before  it.   
 In  case  where  the  material  is
insufficient to frame a charge, the trial Court  may  either  discharge  the
accused or may direct further investigation in the matter.  
Before  deciding
as to which one of the three courses of action  mentioned  above  is  to  be
resorted to, the trial Court must examine the content of the complaint,  the
evidence gathered by the investigating agency and  also  scrutinize  whether
the investigating agency proceeded in the right direction.

12.   We, therefore, allow the appeal and set aside the impugned order.
  
2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41859
                                                          REPORTABLE

                        IN THE SUPREME COUR OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.1838  OF 2014
                 [Arising out of SLP(Crl.) No.4540 of 2013]



Ghanshyam Sharma                             …Appellant

            Versus

Surendra Kumar Sharma & Ors.            …Respondents






                               J U D G M E N T


Chelameswar, J.

1.    Leave granted.

2.    Aggrieved by the judgment and order  dated  12th  September,  2012  in
Criminal Misc. Application No.34280 of  2011,  the  defacto  complainant  in
case No.1743/IX/2009, arising out of Case Crime No.246 of 2009 on  the  file
of the 1st Additional  Chief Judicial Magistrate,  Mathura,  preferred  this
appeal.

3.    The respondents are the accused in the abovementioned  case.   By  the
impugned  order,  the  High   Court   quashed   the   proceedings   in   the
abovementioned criminal case on the file of the trial Court.

4.    It is alleged that there was an agreement between  the  appellant  and
the contesting respondents (1 to 3) where under the said  respondents  agreed
to sell a plot of land admeasuring 400 sq. yards  to  the  appellant  herein
for an amount of Rs.44,00,000/-.  It is alleged that as per  the  agreement,
the appellant did, in fact, make some payment.

5.    On 11.7.2009, the appellant complained to the police that  the  father
of the contesting respondents herein had  called  the  appellant  herein  on
telephone and asked the appellant to make the payment of the balance  amount
to  the  first  respondent  herein.   Accordingly,  the   first   respondent
approached the appellant.  Both of them went to the bank in a car  belonging
to the  first  respondent  wherein  the  appellant  withdrew  an  amount  of
Rs.16,68,000/-.  Both of them proceeded to the house of the  father  of  the
respondents.  When they were about to enter the house, the first  respondent
insisted that the  appellant  leave  the  money  in  the  car  itself.   The
appellant left the money  in  the  car  and  went  into  the  house  of  the
respondents.  While the appellant and the father  of  the  respondents  were
discussing, the first respondent went out of the house and returned after  a
while to inform the appellant that the glass of the vehicle, in which  money
was kept, was broken and the money was stolen.

6.    In the abovementioned background, the  appellant  lodged  a  complaint
with the police praying that action be taken against the respondents.

7.    The police  investigated  the  case  and  filed  a  chargesheet  under
Section 406 and 420 IPC.  The trial Court summoned the accused  (respondents
herein).  The respondents  approached  the  High  Court  under  Section  482
Cr.P.C.  praying  that  the  criminal  proceedings  be  quashed.   The  said
application was allowed by the High Court and hence the instant appeal.

8.    The basic facts that the appellant withdrew money from the bank,  went
to the house of the respondents accompanied  by  the  first  respondent  and
left the money in the car of the first respondent do not  appear  to  be  in
dispute.  On the other hand, from the impugned judgment it appears that  the
argument before the High Court was that the offences under Section  406  and
420 IPC are not made out on the facts alleged in the FIR.   The  submissions
made before the High Court can be culled out from  the  impugned  order  and
are as follows:
“Two fold submissions  have  been  made  by  the  learned  counsel  for  the
applicants:-

1.    That the facts disclosed in the report as well as in the statement  of
the witnesses, do not constitute the substantive offence under  Section  406
as there is no entrustment of the property.

2.    That the amount of  Rs.16,68,000/- was required  to  be  paid  by  the
complainant in lieu of the sale consideration as such offence under  Section
420 is not made out as no inducement was made by the applicants  to  deliver
the property to the applicants.  Even  if  it  is  assumed  that  money  was
handed over this would be discharge of liability in respect of the  purchase
of the plot by the complainant.  It would not constitute entrustment as  the
complainant had transferred this money without  retaining  any  domain  over
the said property and the transferee had absolute right to  dispose  of  the
same.”

9.    The High Court opined that there was no entrustment of  the  money  in
the instant case and at best it was a case of theft  falling  under  Section
379 IPC.
      “What is being alleged in the present case is  that  the  money  which
was carried by the complainant for discharge of  his  liability  for  paying
remaining sale consideration which amount was kept in the vehicle  owned  by
the applicants.  There was no specific agreement between the  applicant  and
the accused persons for creation of dominion for  the  said  property  which
could constitute an entrustment.  Even the dominion over  the   property  is
not being reflected in the  statement  of  the  witnesses  as  also  of  the
complainant.  All that is said that the money was kept in the vehicle  which
was found missing after the complainant  and  applicants  came  out  of  the
house of one of the applicants.  By any stretch of imagination it cannot  be
said that the  property  was  entrusted  to  the  accused  persons.   It  is
admitted case of the persons that the  money  was  found  missing  from  the
vehicle.  The question of misappropriating of the  same  as  such  does  not
arise.  There is no evidence on record that the said money was taken by  the
accused.  The money was found missing from the vehicle.  This  at  best  can
be an offence under Section 379.  In view of this, I do not find any  reason
to allow the proceedings to continue. Since both the offences under  Section
420 and 406 are not made out, it is one of the rarest cases where the  court
is required to quash the proceedings.”

10.   We do not propose to examine the correctness of the findings  recorded
by the High Court in an enquiry that there  was  no  entrustment  of  money.
The fact remains that the appellant lost money which was kept in the car  of
the first respondent.  Even according to the  High  Court,  the  case  would
fall under Section 379 IPC.  The High Court, in our opinion,  grossly  erred
in quashing the proceedings against the respondents with a certificate  that
it is one of the rarest cases where the  court  is  required  to  quash  the
proceedings.

11.   Whether the respondents are guilty under Section 379 IPC or not  is  a
matter of evidence.  The fact that the police chose to  file  a  chargesheet
under Section 406 and 420 IPC is not conclusive regarding the  offences  for
which the respondents-accused are to be tried.  The trial Court  can  always
frame an appropriate charge if there is sufficient material from the  report
of the  police  available  before  it.    In  case  where  the  material  is
insufficient to frame a charge, the trial Court  may  either  discharge  the
accused or may direct further investigation in the matter.  Before  deciding
as to which one of the three courses of action  mentioned  above  is  to  be
resorted to, the trial Court must examine the content of the complaint,  the
evidence gathered by the investigating agency and  also  scrutinize  whether
the investigating agency proceeded in the right direction.

12.   We, therefore, allow the appeal and set aside the impugned order.


                                                               ………………………….J.
                                                          (J. Chelameswar)


                                                              ……………………..….J.
                                                   (A.K. Sikri)
New Delhi;
August 26, 2014

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