THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL PETITION No.10449 OF 2023

O R D E R:

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) by the petitioner/accused No.3 to quash the proceedings against him in C.C.No.2483 of 2022, pending on the file of learned II Additional Junior Civil Judge-Cum-X Additional Metropolitan Magistrate, Medchal at Athivelli, for offences punishable under Sections 406, 420 of the Indian Penal Code, 1860 (for short, ‘the IPC’).

2. The case of the prosecution is that de-facto complainant/respondent No.2 lodged a complaint on 18.10.2022 against the petitioner/accused No.3 and other accused persons stating that in the month of October, 2020 he came to know through a mediator namely Ravi Kumar that one school by name ‘Kothwal School’ is for sale. Thereafter, accused No.2 who is the treasurer of the school came to the office of the mediator Ravi Kumar and offered to sell the school for a consideration of Rs.1,45,00,000/- for which the de-facto complainant agreed and gave an advance of Rs.1,00,000/-. It is further stated in the complaint that on 12.10.2020, the de-facto complainant gave a sum of Rs.10,00,000/- to accused No.2 and executed an agreement for the sale of the school. Subsequently, the de-facto complainant had paid various sums on various occasions totaling to Rs.39,95,000/- to the accused Nos.1 and 2 with regard to the agreement between them. Later on, the accused Nos.1 and 2 had sold the school to the petitioner/accused No.3 of Orchid School and upon questioning by the de-facto complainant, the accused Nos.1 and 2 returned an amount of Rs.2,50,000/- and promised to pay the pending amount. Due to non – payment of the pending amount to the respondent he approached the Police and lodged a complaint. 3. Heard Sri Mohd. Muzaferullah Khan, learned counsel for the petitioner as well as Sri E.Ganesh, learned Assistant Public Prosecutor for the respondent – State and Sri P. Vamshedhar Reddy, learned counsel for the respondent No.2.

4. Learned counsel for the petitioner submitted that since it is not the case of the prosecution that the petitioner fraudulently or dishonestly induced the de-facto complainant to deliver any property, or intentionally persuaded the de-facto complainant to do or omit to do something, the ingredients of the offence under Sections 406 and 420 of IPC are not established. In support of his submission, he placed reliance on the judgment of the Hon’ble Supreme Court of India in Deepak Gaba and Others vs. State of Uttar Pradesh and Another¹ and prayed the Court to allow the Criminal Petition.

5. On the other hand, learned Assistant Public Prosecutor opposed the submissions made by the learned counsel for the petitioner stating that since the charge sheet was filed after completion of the investigation, a detailed trial has to be conducted in order to elicit the true facts of the case and as such, interference of this Court, at this stage, is not warranted. Hence, he prayed the Court to dismiss the Criminal Petition.

(2023 Live Law (SC) 3)

6. Learned counsel for respondent No.2 stated that there are serious allegations against the petitioner and prayed the Court to dismiss the Criminal Petition.

7. In Deepak Gaba (Supra), the Apex Court at paragraph Nos.13 and 16 highlighted the requisite ingredients to attract the offence under Sections 406 and 420 of IPC, as outlined in this very recent judgment, which is extracted as under:

“13. Section 406 of the IPC prescribes punishment for breach for trust which may extend to three years or with fine or with both, when ingredients of Section 405 of the IPC are satisfied. For Section 406 of the IPC to get attracted, there must be criminal breach of trust in terms of Section 405 of the IPC or Section 405 of the IPC to be attracted, the following have to be established:

(a)The accused was entrusted with property, or entrusted with dominion over property;

(b) The accused had dis-honestly