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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) whereunder 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

———————–
7

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