# Peer Mohammad v. State Of U.P. & Anr. 2002 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2016) 5 ILRA 2001 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-06 - **Bench:** Sudhir Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/peer-mohammad-v-state-of-u-p-anr-2002-indian-law-reports-allahabad-series-43904 - **Pages:** 6 ## Text 5 All. Peer Mohammad Vs State Of U.P. & Anr. 2001 present case is that after the enforcement of the said scheme on 15.01.2016, these brick kilns were already operating as on the date of the enforcement of the said scheme namely on 15.01.2016. They had already started the manufacturing of bricks and were half way through their business. The enforcement of the scheme, therefore, required the aforesaid Committee to take an appropriate decision in the matter for clearance. The Committees had admittedly in so far as the district of Faizabad and Ambedkarnagar are concerned had not been constituted according to the case of the respondent-State itself till 07.04.2016. Thus the entire season of manufacturing of brick kiln which is almost coming to an end by 30.06.2016 had to pass by in the absence of Constitution of the Committee. The contention of the petitioners, therefore, requires consideration that their continuance should otherwise be acceptable as the very authority which had to grant exemption and clearance had not come into existence till March/ April, 2016. 14. So far as the district of Ambedkar Nagar is concerned the learned Standing Counsel has produced the communication dated 09.04.2016 intimating that the Committee so constituted has already met and is processing the applications. 15. We accordingly direct the respondent nos.6 and 7, after taking notice of the communication dated 06.05.2016 extracted herein above, to proceed to take a decision with regard to the clearance/exemption to the petitioners as expeditiously as possible preferably within a period of three weeks from the date of presentation of the certified copy of this order before them and pass necessary orders with regard to the status of the functioning of the petitioners in the session 2015-2016 so as to facilitate the clearance of stocks already available with the petitioners or to continue their running of the brick kiln for the current season. 16. We make it clear that we have not entered into the legal contentions of the issue of the valid constitution and operational aspects of the committees or the issue of concurrence by the Central Government as raised by the petitioners. The question of raising these issues has to be also left open keeping in view the forum of the National Green Tribunal under the National Green Tribunal Act,2010 particularly Section 14 and Section 18 thereof. 17. The writ petition is disposed off with the aforesaid directions. ---------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 06.05.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Criminal Misc. Writ Petition No.- 5144 Of 2004 Peer Mohammad ...Petitioner Versus State Of U.P. & Anr. ...Opposite Parties 2002 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for Petitioner: Sri Om Prakash Lohia, Sri Nasiruzzaman Counsel for Opposite Parties: Government Advocate, Sri V.K. Sharma, Sri S.N. Yadav Criminal Breach of Trust -- Section 405/406 IPC -- Ingredients -- Complaint alleged that accused obtained goods on credit from complainant's institute and defaulted on payment -- Held: failure to repay a credit amount within the promised time constitutes a mere breach of promise and does not amount to criminal breach of trust -- essential ingredient of entrustment of property with dishonest misappropriation or conversion absent -- no mens rea shown -- summoning order passed under Section 406 IPC found patently illegal and without jurisdiction, amounting to misuse of process of law. (Paras 5-14) Writ Petition Allowed -- Summoning order dated 21.02.2003 and revisional order dated 21.06.2004 upholding the same, along with the complaint, quashed in exercise of inherent jurisdiction. (Para 14) Case Law Discussed: 1. R. Kalyani v. Janak C. Mehta and others, 2009 (1) SCC 516 2. Kamlesh Kumari and Ors. v. State of U.P. and Ors., 2015 (6) SCALE 77 3. Sh. Suneel Galgotia and another v. State of U.P. and others, 2016 (92) ACC 40 4. Bhikari Charan Mohapatra v. State of Orissa, 1982 Cr.L.J. NOC 174 (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Heard Sri Nasiruzzaman, learned counsel for the petitioner and learned A.G.A. for respondent no. 2. None appeared on behalf of respondent no. 2 though the names of Sri V.K. Sharma and Sri S.N. Yadav, Advocates are shown in cause list and case is called in revised. 2. The writ petition is directed against the summoning order dated 21.02.2003 passed by Civil Judge (Junior Division)/ Magistrate, Sikohabad and Revisional order dated 21.06.2004 passed by Additional Sessions Judge, Court No. 1, Firozabad, whereby Criminal Revision No. 134 of 2003 has been dismissed. 3. Learned counsel for the Petitioner contended that complaint, if read in its entirety and treating allegations contained therein true, the same do not disclose any offence under Section 405 IPC, hence order of summoning under Section 406 IPC is patently illegal and without jurisdiction. 4. The complaint has only five paragraphs and the same reads as under: 1.यह डक पररवादी भारत सेवा संस्थाि अम्बेकरिगर डसरसागंज का अध्यक्ष है तण्था भारत सेवा संस्थाि खस्थत अम्बेकर िगर कस्बा व थािा डसरसागंज डजला डफरोजाबाद उिर प्रदेश िादी ग्रामोद्योग बोिग से डविीय सहायता प्राप्त मान्यता प्राप्त संस्था है जो जूता डिमागण व डबकी का कायग करती है। 2.यह डक अडभयुक्त पररवादी के सस्थाि से जूता का कारोबार करता था तथा सस्थाि द्वारा डिडमगत जूता कस्बा डसरसागंज से डमल जािे के पश्चात अडभयुक्त जूता माकेर् कस्बा डबन्दकी डजला फतेहपुर में अपिी दूकाि पर फुर्कर रूप में डबकी करता था अडभिेता उिार लेिे के पश्चात वायदा पर भुगताि डकया था डजसके कारण पररवादी का अडभयुक्त पर डवश्वास हो गया था इसी 5 All. Peer Mohammad Vs State Of U.P. & Anr. 2003 कम में अडभयुक्त िे पररवादी के संस्थाि से डदिाक 6.5.02 को मुवडलग 61330-0 रूपया डबल स० 2297 के जररये डिडमगत जूता उद्योग डलया तथा कुल उिार का डबल मुबडलग 61,330/- रूपया की अदायगी डदिांक 305.02 तक करिे का वर्ि डदया। 3. यह डक अडभयुक्त िे जब डिडश्चत तय शुदा डदिांक 30.5.02 तक उपरोक्त बकाया ििराडश का भुगताि िहीं डकया तो पररवादी व संस्थाि िाडमत व्यखक्त /गवाहाि कई बार अडभयुक्त से उक्त बकाया ििराडश बकाया करिे हेतु डबन्दकी गये डकन्तु तमाम तलब करिे के बावजूद भी अडभयुक्त िे पररवादी को कुछ भी अदा िहीं डकया तो पररवादी िे संस्थाि के अध्यक्ष की हैडसयत से डदिांक 21.82002 को एक रडजस्टिग िाडर्स बावत अदायगी उपरोक्त ििराडश अपिे अडिवक्ता श्री िमेन्द्र कुमार दूबे के माध्यम से अडभयुक्त को उसके पता पर डमजवाया तो अडभयुक्त िे िोडर्स प्राप्त करिे के उपरान्त भी बमकाया ििराडश अदा करिे का ि तो कोई प्रयास डकया और ि िोडर्स का कोई संतोषजिक उिर ही डदया। 4. यह डक अडभयुक्त द्वारा िोडर्स प्राप्त करिे के बावजूद कोई संतोषजिक उिर ि देिे और ि बकाया ििराडश अदा करिे से पररवादी को यह पूणग डवश्वास हो गया है डक अडभयुक्त पररवादी की रकम को हिपिा र्ाहता है। और उसकी डियत िराब हो गयी है। और अमाित में ियाित करिा र्ाहता है। 5.यह डक अडभयुक्त द्वारा यह अपराडिक कृत्य मा०८०डव० की िारा 506 की हद को पहंर्ता है। जो दण्डिीय है।" "1. That the complainant is President of Bharat Sewa Sansthan, Ambedkar Nagar, Sirsaganj and the said Sansthan situated at Ambedkar Nagar, Town and PS Sirsaganj, District Firozabad is a recognized institute financially aided by the Uttar Pradesh Khadi Gramodyog Board and carried on the business of shoe manufacturing and sales. 2. That the accused was in shoe business with the institute of the complainant; and he, after obtaining shoes manufactured by the institute from Town Sirsaganj, would sell them in retail at his shop situated at Shoe Market, Town Bindki, District Fatehpur and he after obtaining shoes from the institute several times on credit made payment as promised; on account of which the complainant started believing him. In this very continuation, the accused on 06.05.2002 vide Bill No. 2297 obtained on credit from the complainant's institute shoes manufactured by it amounting to Rs. 61,330/- and promised to clear the said credit bill amounting to Rs. 61,330/- by 30.05.2002. 3. That when the accused defaulted in payment of the aforesaid outstanding amount till the agreed date i.e. 30.05.2002, the complainant and institute's nominated persons/witnesses visited the accused at Bindki several times for payment of the said outstanding amount and when despite all demands, the accused did not pay anything to the complainant, he, in the capacity of institute's president, sent a registered notice, for payment of aforesaid amount, to the accused at his address through advocate Dharmendra Kumar Dubey. Even after receipt of notice by the accused, he neither made any effort to clear the outstanding amount nor even gave any satisfactory reply to the notice. 4. That on account of neither giving any satisfactory reply nor making any payment even after receipt of notice by the accused, the complainant has every reason to believe that the accused wants to grab his money and has developed ulterior motives, intending to cause breach of trust. 2004 INDIAN LAW REPORTS ALLAHABAD SERIES 5. That this criminal act of the accused comes within the ambit of Section 506 of IPC, which is a punishable offence." (English translation by the Court) 5. Ex facie, I find it difficult to hold that aforesaid allegations satisfy ingredients of Section 405 IPC so as to justify summoning of petitioner under Section 406 IPC. 6. Section 406 IPC provides punishment for "criminal breach of trust" which may be imprisonment for a term upto three years with fine or with both. The term "criminal breach of trust" is defined in Section 405 IPC, 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 wilfully suffers any other person so to do, commits "criminal breach of trust. Explanation 1.--A person, being an employer of an establishment whether exempted under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid." 7. The necessary ingredients to attract offence of "criminal breach of trust", are: (A) entrustment to any person with property or with any dominion over property; (B) the person entrusted: (i) dishonestly misappropriated or converts to his own use of that property; 5 All. Peer Mohammad Vs State Of U.P. & Anr. 2005 (ii) dishonestly used or disposed of that property or wilfully suffers any person so to do in violation- (a) of any direction of law prescribing the mode to which such trust is to be discharged; (b) of any legal contract made touching the discharge of such trust. 8. In the present case entrustment by complainant was that of shoes made by it with trust that same would be sold by accused in retail in a shop. Therefore, property, if sold by accused, it is in accordance with directions and confidence reposed by complainant. The grievance is that price of shoes, supplied by complainant to accused has not been paid within the time promised. It is not that act of selling of shoes was dishonest; or there was a dishonest use; or dishonest disposal of that property; or disposal of property in violation of any direction of law prescribing mode in which trust is to be discharged; or of any legal contract. The entire allegations contained in complaint, if taken together, would only mean that repayment was assured by 30.05.2002 but not paid. Hence, at the best it is a mere "breach of promise" which is not synonymous to "criminal breach of trust". 9. In a similar case, a Sarpanch had applied to Block Development Officer for supply of seeds on credit by specifically stating in application that supply would not benefit him alone but other persons in locality. The direction had been given to pay back amount within a week on supply of seeds but he failed to pay amount within stipulated time. Orissa High Court in Bhikari Charan Mohapatra Vs. State of Orissa, 1982 Cr.L.J. NOC 174 held that it amounts to breach of trust and not criminal breach of trust. 10. Criminal breach of trust, therefore, would require complainant to show, (a) that accused was entrusted with property or with dominion over it; and, (b) that he misappropriated it or converted it to his own use or used it or disposed it. Mens rea is an essential element. 11. Normally this Court does not exercise jurisdiction under Article 226 for quashing complaint or first information report but in certain circumstances it would be justified to do so. In this regard I may to a decision in R. Kalyani Vs. Janak C. Mehta and others, 2009(1) SCC 516, wherein Court has explained, when it would be justified for High Court to interfere in criminal proceedings and Court has said: "Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. 2006 INDIAN LAW REPORTS ALLAHABAD SERIES (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." 12. This decision has been followed in Kamlesh Kumari and Ors. vs. State of U.P. and Ors., 2015(6) SCALE 77. This has also been followed recently by a Division Bench of this Court, (in which I was a member) in Sh. Suneel Galgotia and another Vs. State of U.P. and others, 2016(92) ACC 40. 13. Following above authorities and exposition of law, and discussion as also after examination of complaint, I have no manner of doubt that complaint in question does not satisfy ingredients of Section 405 IPC, hence no offence punishable under Section 406 IPC can be said to have been committed. In such circumstances, order passed by Court below summoning petitioner is clearly illegal, without jurisdiction and amounts to misuse of process of law. 14. In view thereof, writ petition is allowed. Impugned orders dated 21.02.2003 and 21.06.2004 as also the complaint made by respondents are hereby quashed. 15. There shall be no order as to costs. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 06.05.2016 BEFORE THE HON'BLE SHASHI KANT GUPTA, J. THE HON'BLE MRS. VIJAY LAKSHMI, J. Criminal Appeal No.- 6555 Of 2006 & Criminal Appeal No.- 5792 Of 2006 Anees ...Appellant Versus State Of U.P. ...Respondent Counsel for Appellant: K.K. Singh, Brijesh Sahai, Nazrul Islam Jafri, Qamrul Hasan Siddiqui, R.A. Siddiqui, R.C. Singh