Point of Law: Section 405 IPC defines criminal breach of trust.

JUDGMENT :

1. Heard Mr. A Bhattacharya, the learned counsel for the petitioner and Mr. PK Deka, learned counsel appearing for the respondent.

2. The present petition is filed under Section 482 Cr.P.C. read with Section 401 Cr.P.C. for quashing of the order dated 17.02.2022 whereby the learned Judicial Magistrate First Class, Kamrup (M) at Guwahati had taken cognizance of offences under Section 406/420 IPC against the petitioner on the basis of a complaint filed by the sole respondent, after considering the documents exhibited and recording statements of the sole respondent and one witness under Section 200 Cr.P.C.

3. The learned counsel for the petitioner submits that reading as a whole the complaint petition as well as the initial deposition of the sole respondent recorded under Section 200 Cr.P.C. makes out no case against the present petitioner to proceed or to take cognizance by the learned Magistrate and therefore this is a fit case to interfere by this court in exercise of its power under Section 482 Cr.P.C.

4. It is the further contention of the learned counsel for the petitioner that the dispute is totally civil in nature inasmuch as reading of the complaint will go to show that in fact a prayer is for specific performance of a contract in the guise of a complaint. Therefore, the learned counsel for the petitioner submits that no case under Section 406/420 IPC is made.

5. Per contra, the learned counsel for the respondent argues the followings:

I. The brief facts of the present case is that, as per the Agreement dated 04.02.2009 (Annexure - 3, Page – 31 to 38), Four (4) numbers of Flats (Schedule-B of the Agreement) are to be handed over to the Complainant by the Partnership Firm of the Accused persons, namely M/S The Pearl Shells Developers, in lieu of the land of the Complainant described in the Schedule-A of the Agreement. Even prior to the said Agreement dated 04.02.2009, the said Partnership Firm made a proposal to the Complainant on 02.12.2008 (Annexure – 3, Page – 39) intimating their decision to give her the said Four (4) numbers of Flats with full specification of the Flats to be constructed against her land.

II. In the Complaint date 05.07.2021 lodged by the Complainant, it is clearly stated that out of the four (4) Flats as agreed to be delivered by the said Firm, only two (2) numbers of Flats were actually handed over to the Complainant and the said Firm has been maintaining a stoic silence in the matter of delivering the remaining two (2) Flats despite several approaches.

III. Now the Accused No. 2 (Sri Niloy Paul), who is one of the three partners of the said Partnership Firm, has approached this Hon’ble Court seeking quashing of the said Complaint in respect of him. In his instant Petition at Paragraph No. 4, he has clearly stated that he “came to know that the flats were already handed over to the Respondent (Complainant) way back in the year 2011”. That means, the Accused Petitioner is not denying the claim of the Complainant about her entitlement of four numbers of Flats as clearly mentioned in the Agreement dated 04.02.2009, as well as the proposal dated 02.12.2008, and according to the said Petitioner/Accused No. 2, all the said four Flats were already handed over to the Complainant/Respondent long back.

IV. From the above admission of the Accused Petitioner, it is the duty of the Criminal Court to find out whether such Four (4) numbers of Flats were actually handed over to the Complainant or not. If the Accused Petitioner could prove that his Firm has already handed over the said Four (4) numbers of Flats to the Complainant, then the accused persons are entitled for acquittal. However, if the accused persons fail to prove the said fact before the Court of law, then they are liable to be punished for the offence of a pure case of cheating as well as for offence of criminal breach of trust under sections 420 and 406 of the Indian Penal Code.

V. Therefore, to secure the ends of justice, the above Complaint of