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State Of Maharashtra vs Vishwanath Tukuram Umale & Ors on 2 August,

1979( convicted of theft, tyres case)
It was alleged that seven tyres and seven tubes were booked from Wadi Bunder goods shed of
the Central Railway on March 20, 1971, in wagon No. WR 35775. The seven tyres were
stolen by accused 1, 2, 5 and the absconding accused, from the Down Yard of the Bhusawal
railway station while in transit, and were kept in the hut of Ragho Motiram Birhade. Accused
1 sold seven tyres to accused 3 for Rs. 2700/-, and accused 3 removed them in his motor-lorry
to Savda. He produced four tyres from his lorry, but three tyres were found to have been sold
the accused 4 and were seized from his possession. It was therefore specifically alleged that
accused 1, 2, S and the absconding accused were proved to "have been found in unlawful
possession" of the railway property while accused 3 and 4 were found in unlawful possession
thereof within the meaning of section 3 of the Act. The trial magistrate however refused to
frame a charge under that section against any of the accused and framed charges for the
commission of offences under sections 379, 461 and 411 I.P.C. against all the accused. The
State felt aggrieved and applied for a revision of that order, but it was upheld by the
Additional Sessions Judge, Jalgaon, as mentioned above. We have made a mention of the
view which was taken when the matter went up to the High Court in revision.
It was clearly alleged in this case that accused 1, 2, S and the absconding accused committed
theft of the seven tyres by removing them from the wagon in the Down Yard of railway
station Bhusawal. So when it was alleged that the accused were responsible for the removal
of those tyres, it was thereby alleged that they had been in possession of those tyres for some
period of time, even if it is assumed that they parted with them later on and left it for accused
1 to sell them to accused 3. The allegation against accused 1, 2, 5 and the absconding accused
was therefore to the effect that they ' had been in possession" of the railway property in
question, and that was sufficient to attract the application of section 3 of the Act. The High
Court erred in taking the view that it was necessary, for the purpose of bringing a case under
that section, to prove that the accused were found to be in possession of the railway property
at the time of its seizure, and that it would not be attracted in the case of an allegation that the
railway property was the subject matter of dacoity or theft by the accused. The High Court in
fact went to the extent of upholding the argument that section 3 of the Act was meant to meet
a situation "analogous to the one for meeting of which section 124 of the Bombay Police Act
has been enacted." That section relates to possession of property of which no satisfactory
account is given by its holder. It is therefore the failure to account for the actual possession of
the property found in the possession of the accused which constitutes an offence under
section 124 of the Bombay Police Act. Unlike section 3 of the Act, that section does not go to
the extent of penalising the accused where he is proved to "have been in possession" of that
property. It is true that the gravamen of the offence under section 3 of the Act is the
"possession" of the property, but it need not necessarily be a subsisting possession, and it is
sufficient if the accused was proved to "have be in possession" of that property at any point of
In the view we have taken, the appeal is allowed, the impugned judgment of the High Court
dated November 30, 1972, is set aside, and the trial court is directed to frame a charge under

section 3 of the Act against accused 1, 2, 5 and the absconding accused in addition to the
charge under sections 379/34 and 461/34 I.P.C. The accused are directed to appear in the trial
court on September 3, 1979. The trial of the case has been considerably delayed and it should
now proceed with expedition.
Chandi Kumar Das Karmarkar And ... vs Abanidhar Roy on 9 October, 1963(fish case)
The complainant Abanidhar Roy claimed to be in possession of Nutan pukur as a result of
bhag settlement for five years with Sailesh Chandra Banerjee (P. W. 2) under an Amalnama
dated June 15, 1959. His case was that after obtaining possession he had reared fish in this
tank by putting in fry but the present appellants and some others caught fish on the abovementioned dates after fish had grown to be right size. The defence of the appellants was that
they were recorded as tenants in respect of this tank under a jama of Rs. 4/6/-and were in
possession. They denied that they caught fish on the two dates or at all and in the alternative
contended that even if they did, it was in the bona fide exercise of their claim of right. The
complainant stated that the interest of the Duttas was sold in a revenue sale and was
purchased by Sailesh Chandra Banerjee and further that Banerjee had obtained possession of
the tank after a decree in a title suit filed by him against the Duttas and the present appellant
and some others. That suit was T.S. 203/1954 in the Court of the Second Munsiff, Burdwan.
The decree in that suit was passed ex-parte on December 6, 1954. On the strength of that
decree Sailesh Chandra claimed to have obtained possession of the tank on February 27, 1955
(vide warrant for delivery of possession and Bailiff's report Exh. 3 and 4). The appellants and
some other defendants however moved the learned second Munsiff, Burdwan under Order 9
Rule 13, Civil Procedure Code to set aside the ex-parte decree on the averment that Sailesh
Chandra Banerjee in collusion with certain court functionaries had suppressed the summons
and it was served on the defendants in the case. That case was registered as Misc. case No. 64
of 1955 and on July 26, 1955, the ex-parte decree was set aside on the ground that the
defendants were not served. Sailesh Chandra Banerjee filed a revision application in the High
Court but it was dismissed on January 14, 1957. During these proceedings Sailesh Chandra
Banerjee had given an undertaking that he would not cut down any trees on the banks till the
disposal of the miscellaneous case thereby admitting that there was a dispute with respect to
the ownership and possession of the tank.
The two appellants who have filed this appeal by special leave have been convicted under
Section 329, Indian Penal Code and sentenced to a fine of Rs. 100/- each or in default of fine
to suffer simple imprisonment for one month by the High Court of Calcutta after reversing
their acquittal by the Additional Sessions Judge, Burdwan. Originally five named and sixteen
un-named persons were charged under Sections 147,447,379 and 504/352, Indian Penal Code
but the Magistrate 1st Class Katwa convicted me two appellants under Section 379, Indian
Penal Code only. The charge under Section 379, Indian Penal Code against them was that on
13th and or 14th day of January 1958, they committed theft of fish by fishing in a tank called
Nutan pukur in Kutalghosh mouza P.S. Mongolkote which was in the possession of the
complainant Abanidhar Roy, the Respondent before us. Nutan pukur is a tank which with its
banks and wet and dry portions measures about 7.21 acres. The water covers about 3/4 of the

area. In the Parcha of Mouza Kotalghosh, the two appellants with three others are shown as
tenants with their interest described as "settled raiyot Mukurari" and the sixteen annas
superior interest is described as belonging to Banbehari Dutta and others. The offence of theft
consists in the dishonest taking of any moveable property out of the possession of another
without his consent. Dishonest intention exists when the person so taking the property
intends to cause wrongful gain to himself or wrongful loss to the other. This intention is
known as animus furandi and without it the offence of theft is not complete. Fish in their
free state are regarded as ferae naturae but they are said to be in the possession of a person
who has possession of any expanse of water such as a tank, where they live but from where
they cannot escape. Fishes are also regarded as being in the possession of a person who owns
an exclusive right to catch them in a particular spot known as a fishery but only within that
spot. There can thus be theft of fish from a tank which belongs to another and is in his
possession, if the offender catches them without the consent of the owner and without any
bona fide claim of right. That there was a dispute between the parties which had not till then
been decided by the Civil Court goes without saying. The facts, do show that the decree was
obtained by unfair means and the possession was tainted by fraud. Of course by the setting
aside of the ex parte decree possession would not revert without proceedings for restitution,
but the circumstances undoubtedly were such that the appellants might well have thought that
their possession stood restored. This belief was not, lessened by the grant of a temporary
injunction and its withdrawal on the assurance, of Sailesh Chandra Banerjee that during the
pendency of the proceedings he would not exercise certain rights of ownership. Further the
transaction between Abanidhar Roy and Sailesh Chandra Banerjee during the pendency of the
Civil Case was not binding on the appellants. There was thus a real dispute and in a manner
of speaking also a recognition that a rival, claim in respect of the tank did exist. In these
circumstances it was not improbable that, the appellants considered that after the setting aside
of the ex parte decree and the giving of the undertaking by Sailesh Chandra Banerjee they
were entitled as the recorded tenants, to catch fish for a ceremony in their house. That they
did it only once does not prove lack of bona fides but rather the contrary. All the
embellishments in the case about unlawful assembly, riot, force and threats have not been
believed and the catching of the fish in this big tank with nets was done quite openly.
10. In our opinion there was an absence of the animus furandi and the circumstances bring
this case within the rule that where the taking of moveable property is in the assertion of a
bona fide claim of right, the act, though it may amount to a civil injury, does not fall within
the offence of theft. In this view of the matter we are of opinion that the acquittal of the
appellants ought not to have been set aside. We according allow the appeal and setting aside
the conviction of the appellants order their acquittal. The fines if recovered shall be refunded
to them.
Robbery and dacoity
Venu @ Venugopal And Ors vs State Of Karnataka

On 24.6.2001 at 9.00 p.m. on Mulbagal-Punganoor road PWs 2 and 3 were going on a Bajaj
Scooter. When they were near 'Kirumani Mitta' of 'Buddadoru village", accused persons 2 to
5 intercepted PWs 2 and 3, and robbed the gold chain, golden ear drops, thali and cash of
Rs.400/- by threatening with knife. The accused tied the legs and hands of PW-2 and PW-3
and threatened them not to escape and get out from the place for about ten minutes after their
departure. The victims went to Punganoor Police Station and later on lodged First
Information Report with Nangali Police (Kolar Dist.) on 25.6.2001. The Traffic Police while
checking found A-2, A-3 and A-4 were going on the scooter (M.O.6) they had robbed from
PW-2, the deadly weapons like knives, pistol, iron rod, etc. were hidden in the scooter. On
interrogation, the accused persons admitted the commission of offence in question. A-5 and
A-8 were arrested on the information given by A-2 to A-4. At the instance of A-2, the gold
jewellery (M.Os.2 and 3) are recovered from PW-6-Pawn broker. The Bajaj Scooter (M.O.6)
was seized from A-2, A-3 and A-4. PW-13 with whom the ear- studs and the chain were
pledged by A-2, testified to the said fact. PWs 2 and 3 identified A-2 to A-5 as the persons
who robbed them. Prosecution claimed that the identification of accused persons by PWs 2
and 3 coupled with the recovery of jewellery at the instance of A-2 and seizure of scooter
from A- 2, A-3 and A-4 clinchingly established the guilt of A-2 to A-5.
The investigating agency submitted charge sheet for alleged commission of offence
punishable under Section 395 of IPC. The case was split up against A-1, A-6 and A-7 as they
were absconding.
Learned Additional Sessions Judge, Kolar referred to the evidence of PWs 1 and 2, the
recovery of the scooter, the recovery of stolen articles and identification thereon to conclude
that accused persons are guilty and accordingly A-2 to A-5 were convicted for offence
punishable under Section 395 IPC. Accused 7 and 8 were acquitted as the evidence was not
sufficient to find them guilty. Considering the gravity of the offence, custodial sentence of 10
years imprisonment and a fine of Rs.5,000/- each was imposed. In appeal, the High Court
found that the offence committed was covered under Section 392 IPC, but considering the
gravity of the offence upheld the sentence.
There can be no case of robbery which does not fall within the definition either of theft or of
extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of
robbery was a theft or an extortion. A large proportion of robberies will be half theft, half
extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins
to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists
in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without
Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by
extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by
theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained
by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which
are committed, something like this actually takes place, and it is probable that a few minutes
later neither the robber nor the person robbed would be able to recollect in what proportions

theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice
that this should be ascertained.
Learned Additional Sessions Judge, Kolar referred to the evidence of PWs 1 and 2, the
recovery of the scooter, the recovery of stolen articles and identification thereon to conclude
that accused persons are guilty and accordingly A-2 to A-5 were convicted for offence
punishable under Section 395 IPC. Accused 7 and 8 were acquitted as the evidence was not
sufficient to find them guilty. Considering the gravity of the offence, custodial sentence of 10
years imprisonment and a fine of Rs.5,000/- each was imposed. In appeal, the High Court
found that the offence committed was covered under Section 392 IPC, but considering the
gravity of the offence upheld the sentence.
In the instant case, the evidence of the victim, her husband, the factum of recovery of the
vehicle used has clearly established the commission of offence by the appellants. The offence
was committed on a public road. There is no dispute that it was not a highway. It is also not in
dispute that the offence was committed during sunset and sunrise that is, at about 9.00 p.m.
Appeal dismissed
Shyam Behari vs State Of U.P
The appellant had been charged inter alia with having committed an offence under section
396, Indian Penal Code in that he on 10/11th day of September, 1954, about two or three
gharis before sunrise in village Banni Purwa, hamlet of Banni, police station Kotwali, Kheri,
along with other persons committed dacoity in the house of Mendai and that in the
commission of such dacoity, murder was committed by one of the members. The learned
Sessions Judge found that the appellant, and the others, had entered the house of Mendai with
intent to commit a robbery but were foiled in the attempt owing to Mendai and Ganga having
raised a hue and cry. The residents of Banni Purwa and the adjoining 'abadi' of village Banni
arrived on the scene and the appellant and his companions, without collecting any booty, ran
away from the house of Mendai. They were chased by Mendai and Ganga and when they
were crossing the ditch of Pipra Farm, Mendai caught hold of one dacoit. Another dacoit who
was identified by several witnesses as the appellant thereupon fired a pistol shot which hit
Mendai and Mendai fell to the ground and was removed to the hospital where he died. The
further movement of the appellant thereafter need not be recounted here. The learned
Sessions Judge as also the High Court recorded concurrent findings of fact that the appellant
shot and killed Mendai to secure the release of one of his companions and also to ensure their
safe retreat.
turned on the question whether the retreat was so separated by time or space from the offence
which was the common object of the assembly as not to form part of it. That was held to be a
pure question of fact and of degree not to be determined by any general rule but by the
special circumstances of each case. On the facts and circumstances of that case, the Court
held that there was no. such separation, that the retreat was an essential part of the common

criminal purpose and that it was the continuation of the actual dacoity while the dacoits were
still acting in concert, and was so closely and necessarily connected with the actual demand
of 'khand' that it must be taken that the murder was committed in prosecution of the common
object of the assembly.
14. There is, therefore, considerable force in the contention urged on behalf of the appellant
before us that, In the facts and circumstances of the present case, the transaction of dacoity
had ended the moment the dacoits took to their heels and another and a separate transaction
took place when the appellant shot at Mendai while crossing the ditch of the Pipra Farm and
that, therefore, the appellant could not be convicted of having committed the offence under
section 396, Indian Penal Code. Learned counsel for the appellant strenuously contented that
the conviction of the appellant under section 396, Indian Penal Code should be quashed and
that on the concurrent findings of fact recorded by both the Courts below the conviction
should be altered to one under section 395, Indian Penal Code.
15. It is, however, unnecessary to do so because in the facts and circumstances of the present
case the appellant is liable to be convicted of the offence under section 302, Indian Penal
Code without anything more. The charge under section 396, Indian Penal Code comprised of
two ingredients : - (1) The commission of the dacoity, and (2) the commission of the murder
in so committing the dacoity. The first ingredient was proved without any doubt and was not
challenged by the learned counsel for the appellant, The second ingredient also was proved in
any event as regards the, commission of the murder because the attention of the accused was
focussed not only on the commission of the offence while committing the dacoity but also on
the individual part which he took in the commission of that murder. So far as he was
concerned, he knew from the charge which was framed against him that he was sought to be
made responsible not only for the commission of the dacoity but also for the commission of
the murder in committing such dacoity. The evidence which was led on behalf of the
prosecution specifically implicated him and he was named by the prosecution witness as the
person who shot at Mendai while crossing the ditch of Pipra Farm. His examination under
section 342 of the Criminal Procedure Code also brought out that point specifically against
him and he was questioned in that behalf. Both the courts below recorded their concurrent
findings of fact in regard to the part taken by the appellant in the commission of the murder
of Mendai. Under these circumstances it could not be urged that the appellant could not be
convicted of the offence under section 302, Indian Penal Code if such a charge could be made
out against him (Vide our decision in Willie (William) Staney V. State of Madhya Pradesh,
Cri App No. 6 of 1955 D/- 31-10-1955 : ( (S) 1956 AIR(SC) 116 ) (F).
16. We do not, therefore, think it necessary to express any definite opinion on the question of
law mooted in the order of the High Court granting to the appellant certificate of fitness for
appeal. Suffice it to say that even if the conviction of the appellant under section 396, Indian
Penal Code be not perchance sustainable, the murder of Mendai having been committed after
the dacoits had taken to their heels without collecting any booty, the case against the
appellant in regard to the commission of the murder of Mendai has been proved beyond any

shadow of doubt and under those circumstances we would convict the appellant of having
committed the offence under section 302, Indian Penal Code.
17. We accordingly see no. force in this appeal and dismiss the same. The conviction of the
appellant will stand confirmed and also the sentence of death passed by the learned Sessions
Judge upon him.

Dhananjay @ Dhananjay Kumar Singh vs State Of Bihar & Anr on 2 February, 2007
(money due)
The basic fact of the matter is not in dispute. A written report was lodged on 6.9.2000 by the
2nd respondent herein alleging that on 31.8.2000 at about 5.00 p.m. some unknown persons
had come to his room No.207 at Jagat Trade Centre at Fraser Road, Patna and informed him
that as a sum of Rs.1500/- was due to him, he should make the payment thereof. Allegedly,
on his reply that he would make the payment only of the amount due from him as per settled
accounts; abusive language was used and he was slapped by one Gautam Dubey. A sum of
Rs.1580/- was said to have been taken away from his upper pocket. A First Information
Report was lodged on the basis of the said report after six days from the alleged date of
commission of the offence. The parties, however, arrived at an amicable settlement of their
dispute. A charge-sheet was filed on completion of investigation on 2.2.2001 against the
appellant herein purported to be for an offence under Sections 323, 384, 504 read with
Section 34 of the Indian Penal Code. An application for discharge was filed by the appellant
under Section 239 of the Code of Criminal Procedure, 1973, inter alia, on the premise that the
disputes between the parties had been settled. The said application was rejected by the
learned Judicial Magistrate on the ground that Section 384 of the Indian Penal Code being
non-compoundable, the said application was not sustainable. A First Information Report as is
well known, must be read in its entirety. It is not in dispute that the parties entered into
transactions relating to supply of bags. The fact that some amount was due to the appellant
from the First Informant, is not in dispute. The First Information Report itself disclosed that
accounts were settled a year prior to the date of incident and the appellant owed a sum of
about Rs.400-500 from Gautam Dubey.
According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due to him.
It is in the aforementioned premise the allegations that Gautam Dubey and the appellant
slapped the First Informant and took out Rs.1580/- from his upper pocket must be viewed.
No allegation was made that the money was paid by the informant having been put in fear of
injury or putting him in such fear by the appellant was intentional.

The First Informant, admittedly, has also not delivered any property or valuable security to
the appellant.
A distinction between theft and extortion is well known. Whereas offence of extortion is
carried out by over-powering the will of the owner; in commission of an offence of theft the
offender's intention is always to take without that person's consent.
We, therefore, are of the opinion that having regard to the facts and circumstances of the case,
no case under Section 384 of the Indian Penal Code was made out in the First Information
We need not, having regard to the facts and circumstances, go into the aforementioned
contentious issue in the instant case, as we are of the view that no case has been made out for
proceeding against the appellant under Section 384 of the Indian Penal Code. In that view of
the matter, there was absolutely no reason as to why the settlement arrived at by and between
the parties could not have been accepted, as the same would not come within the purview of
Sub-Section (9) of Section 320 of the Code of Criminal Procedure.
For the reasons aforementioned, while quashing the charge framed under Section 384 of the
Indian Penal Code, we direct the learned Magistrate to proceed to consider the question in
regard to the maintainability of the compromise petition between the parties in accordance
with law.
The appeal is allowed. No costs.
Rameshwar Pandey & Ors vs State Of Bihar on 18 January, 2005(dalan)
The case of the prosecution is that an occurrence took place on 28th August, 1994 at about
9.00 A.M. in village Dawanpur which falls within the jurisdiction of police station
Bhagwanpur in the District of Kaimur, Bihar in which five members of the family of the
informant were killed. According to the prosecution 18-20 armed people in khaki uniform
came to the dalan of the deceased. Five male members of the family (since deceased) who
were sitting in the dalan of the house after taking their breakfast were surrounded by them.
PW8, a female member of the family rushed to the door and finding so many persons armed
with fire arms closed the door and rushed inside the house. She along with three other female
members of the family went to the roof of the house along with the licensed gun of one of the
deceased and a bundle of cartridges. From the roof of the house she and the other female
members saw that those people who had surrounded the deceased had tied their hands behind
their back. They were demanding the gun and the cartridges. The father-in-law of PW8
implored PW8 to give away the gun otherwise all of them will be killed. Heeding to his
advise, she threw the gun from the roof along with the cartridges. One of the members of the
mob picked up the gun and cartridges whereafter all five male members of the family whose
hands had been tied were taken by the mob towards the South. Soon thereafter the female
members of the family heard the sound of gun shots 10-15 in number. Later they were

informed that all the persons who had been taken away by the mob have been shot dead.
These four female members of the family are PW 5, 6, 7 and 8.
Once it is held that there was an unlawful assembly which had an illegal common object,
inasmuch as all of them came armed with fire arms to the house of the deceased, the only
question which remains to be considered is as to what was the common unlawful object of
that assembly : whether they intended to cause the death of the deceased or whether they
simply intended to abduct them or commit any other offence. This is what precisely the High
Court has observed in paragraph 17 of its Judgment. It may be that one or all of these
unlawful acts were the objectives of the unlawful assembly. The mob after coming to the
dalan of the deceased forced them to handover their gun by show of force. An offence under
Section 384 was, therefore, clearly made out and with the aid of Section 149 IPC all the
appellants can be held guilty of that offence. The next question is whether they can also be
held vicariously liable for the offence of murder. Once it is held that there was an unlawful
assembly and all the appellants came to the dalan of the deceased armed with deadly weapons
like fire arms, and after tying the hands of the deceased took them away, and soon thereafter
gun shots were heard and the deceased were found to have been shot dead in the orchard
nearby, no other inference except the inference of guilt can be drawn from these
circumstances. There is no material on record even to suggest indirectly that the offence was
committed by any other person or persons, or that some of the persons who were initially
members of the unlawful assembly disassociated themselves and did not participate in the
offence of murder. In the absence of any such plea or material on record the application of
Section 149 IPCcannot be doubted. Having regard to the facts of the case, particularly the
fact that all the members of the mob had come armed with fire arms i.e. deadly weapons with
a view to commit the offence under Section 384 IPC, all the members of the assembly must
be attributed the knowledge that it was likely that the offence of murder may be committed in
prosecution of that object. This is particularly so because all the appellants were carrying fire
arms and had acted in a high handed manner in broad day light leaving no doubt about their
intentions. It may be that the actual shooting may have been done by one or some of the
appellants only, but applying the principle enshrined in Section 149, each one of them must
be held vicariously liable for the offence committed even by some of them. Even otherwise
the facts lead to the only conclusion that the unlawful assembly had come determined to
commit the offence of murder. They were all armed, came together and abducted the
deceased who were soon thereafter murdered using fire arms.
We are, therefore, of the view that the conviction of the appellants is justified. There is no
merit in these appeals and the same are, accordingly, dismissed.


U. Dhar & Anr vs The State Of Jharkhand & Anr on 20 January, 2003 sail tcpl

Briefly, the facts are that Bokaro Steel Plant, a unit of Steel Authority of India Limited (for
short, SAIL) awarded a contract to M/s. Tata Iron & Steel Co. Ltd. (for short, TISCO),
Growth Shop for certain works. TISCO growth shop completed supply part of the work and
erection part of the work was entrusted by it to M/s. Tata Construction & Projects Ltd. (for
short TCPL). TCPL in turn issued Tender Enquiry and awarded the work to M/s. Singh
Construction Co., the complainant. According to the complainant after completing the work it
demanded payment of the balance amount under the contract from TCPL. The appellants
herein are the Managing Director and President (Operations) of TCPL. When the complainant
failed to receive the payment for the work done, they filed a complaint on 11th January, 2001
under Sections 403, 406, 420 and 120B IPC at Bokaro. The concerned Magistrate took
cognizance of the alleged offences and issued summons vide order dated 19.6.2001 to the
appellants. The appellants challenged the said order by filing a Crl.M.P.4780/2001 in the
High Court of Jharkhand at Ranchi. The impugned order was passed by the High Court
dismissing the said petition on 3rd May, 2002.
The present appeal has been filed against the said order of the High Court whereby the High
court refused to quash the order of the learned Chief Judicial Magistrate taking cognizance of
the alleged offences against the appellants. The learned counsel for the appellants argued that
a perusal of the complaint would show that no case is made out against the appellants for the
alleged offences, and, therefore, the order passed by the learned Chief Judicial Magistrate is
wholly without jurisdiction. According to the learned counsel for the appellants, the
controversy relates to purely a civil dispute regarding payment of money and no case for
criminal complaint for the alleged offences is made out. We have been taken through the
complaint as well as our attention has been drawn to the impugned order passed by the Chief
Judicial Magistrate and the confirming order of the High Court. After careful consideration of
the facts placed on record, it appears to us that the dispute between the parties is of a purely
civil nature. The grievance of the complainant is about the failure of TCPL to pay the balance
amount under the contract even though according to it the work stands completed. The
appellants have disputed this.
In our view, what is relevant is that the contract between TCPL and the complainant is an
independent contract regarding execution of certain works and even assuming the case of the
complainant to be correct, at best it is a matter of recovery of money on account of failure of
TCPL to pay the amount said to be due under the contract. The complainant has alleged that
TCPL has already received the money from SAIL for the work in question and it has
misappropriated the same for its own use instead of paying it to the complainant and it is for
this reason that the offences are alleged under Sections 403, 406 and 420 etc. The courts
below have overlooked the fact that the contract between Bokaro Steel (a unit of SAIL) and
TCPL is a separate and independent contract. The contract between complainant and TCPL is
altogether a different contract. The contractual obligations under both the contracts are
separate and independent of each other. The rights and obligations of the parties i.e. the
complainant and TCPL are to be governed by the contract between them for which the
contract between TCPL and Bokaro Steel (SAIL) has no relevance. Therefore, even if Bokaro
Steel has made the payment to TCPL under its contract with the latter, it will not give rise to

plea of misappropriation of money because that money is not money or movable property of
the complainant. Further Section 403 uses the words 'dishonestly' and 'misappropriate'. These
are necessary ingredients of an offence under Section 403, IPC. Neither of these ingredients
are satisfied in the facts and circumstance of the case. In para 14 of the complaint, the
complainant has stated as under:
".Release of payments to complainant was never depended on the payment released by
Bokaro Steel Plant a Unit of SAIL to TISCO growth shop and TCPL".
Thus admittedly, the two contracts are independent of each other and payment under one has
no relevance qua the other. It cannot be said that there is any dishonest intention on the part
of appellants nor it can be said that TCPL or the appellants have misappropriated or
converted the movable property of the complainant to their own use. Since the basic
ingredients of the relevant Section in the Indian Penal Code are not satisfied, the order taking
cognizance of the offence as well as the issue of summons to the appellants is wholly
uncalled for. Such an order brings about serious repercussions. So far as the appellants are
concerned when no case is made out for the alleged offences even as per the complaint filed
by the complainant, there is no reason to permit the appellants to be subjected to trial for the
alleged offences. Hence, the appeal is allowed. The impugned orders of the High Court as
well as of Chief Judicial Magistrate are hereby ordered to be quashed.
In view of the above judgment, this appeal is also allowed.
Velji Raghavji Patel vs State Of Maharashtra on 11 December, 1964
The admitted facts are briefly these The firm, Messrs. Bharat Silp Pramandal, which was
formed for carrying on the business of building construction, originally conisted of eight
partners and the appellant was its working partner. This firm was constituted in the year 1954.
But on February 6, 1957 three of the partners retired and the business was continued by the
remaining five partners. Disputes arose amongst them, which were referred to arbitration of
Mr. J. T. Desai, a Solicitor. Apparently, in pursuance of his award a fresh agreement (Ex. N)
was entered into by the partners on June 4, 1958. By virtue of this agreement the appellant's
share in the firm's business was to be of 50 nP. in a rupee while the other partners had
different shares in the remaining 50 nP. Nagindas Jivraj Mehta, who is the complainant in this
case had a share to the extent of 6 nP. Under this agreement the parties decided not to
undertake new work. The agreement required the appellant to complete all the accounts and
prohibited from borrowing money in the name of the firm. It required him "to use his best
efforts to realise all pending bills, security deposits, claims etc." as well as to dispose of the
plant, machinery etc. The agreement also provided that partners, other than the appellant,
would procure, if the need arose, further finance to the maximum limit of Rs. 25,000/- but
that if a sum in excess of this amount was required, that excess was to be brought in by all the
partners including the appellant "individually pro rata in proportion to their shares of profits
and losses in the firm". Clause 8 of this agreement permitted the appellant to withdraw on his
own account a sum of Rs. 10,000 "no sooner he is able to realise any of the pending claims of

bills of the firm or security deposits". We have dealt with this agreement at some length
because it will be relevant to consider these matters in the context of the argument of Mr.
Rana to the effect that the appellant as working partner was entitled to utilise the realizations
made by him for carrying on the work of the firm.
According to the complainant the appellant committed mis- appropriation to the tune of Rs.
8,905/- consisting of the follow-ing six items Rs. 2,871/The appellant admits that he realised these four items but he says that he did so in his
capacity as partner and he utilised them for the business of the partnership. Therefore,
according to him, he is only liable to render accounts to his partners and cannot in any
circumstances be said to be guilty of an offence under S. 409, I.P.C. He also points out that
the complainant has instituted a suit for the dissolution of the partnership and for rendition of
accounts and that he instituted the present complaint solely with the idea of making it
difficult, if not impossible, for the appellant to defend the civil suit properly. On behalf of the
appellant it is contended that even if the prosecution had succeeded in showing that the four
items referred to above were realised by the appellant and that he has not accounted for them
properly he will not be liable for criminal breach of trust under s. 409, I.P.C. but that his
liability would be only of a civil nature.
Mr. Chatterjee finally contends that the act of the appellant will at least amount to dishonest
misappropriation of property even though it may not amount to criminal breach of trust and,
therefore, his conviction could be altered from one under s. 409 to that under s. 403. Section
403 runs thus :
"Whoever dishonestly misappropriates or converts to his own use any moveable property,
shall be punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both."
It is obvious that an owner of property, in whichever way he uses his property and with
whatever intention will not be liable for misappropriaion and that would be so even if he is
not the exclusive owner thereof. As already stated, a partner has, undefined ownership along
with the other partners over all the assets of the, part- nership. If he chooses to use any of
them for his own purposes he may be accountable civilly to the other partners. But he does
not thereby commit any misappropriation. Mr. Chatterjee's alternative contention must be
in the result we allow the appeal and set aside the conviction and sentence passed against
him. Appeal allowed.


Kundanlal S/O Vishveshvarlal ... vs State Of Maharashtra, Through ... on 8 March, 2001
bangle (bangle case )

The prosecution case, in brief, is that Chawlibai w/o Rameshwarlal Bajaj had given six
bangles weighing 69 grams 500 milligrams to applicant No. 1 Kundanlal on 25-1-1987 for
repair of Minakari work on the said bangles. The applicant Kundanlal and his son applicant
No. 2 Harikishan pledged 3-3 bangles each with Bhandara District Co-operative Bank
Limited on 27-1-1987 for Rs. 5,000/-. Inspite of repeated efforts made by Rameshwarlal
Bajaj, the applicants did not return the gold bangles and kept on dodging him. Ultimately a
complaint was lodged with the police in relation to the said bangles. The bangles were
attached by the police and in the trial the applicants were convicted for the offence under
section 406 read with section 34 I.P.C. The applicants claim that the bangles belong to them
and they admitted that the bangles in question were pledged by them with Bhandara District
Co-operative Bank Limited, Goregaon. On the basis of evidence on record, the Appellate
Court found that the prosecution had been able to establish factum of entrustment of the six
gold bangles of minakari work to the accused namely applicant Kundanlal on 25-1-1987.
The prosecution case is that the gold bangles were entrusted by Chawlibai w/o Rameshwarlal
Bajaj with applicant Kundanlal on 25-01-1987. The Additional Sessions Judge came to the
conclusion that prosecution had been able to establish entrustment of six gold bangles to
accused No. 1/applicant Kundanlal. The gold bangles were not actually entrusted to applicant
No. 2. However, applicant No. 2 is reported to have pledged three of the six bangles which
were entrusted by Chawlibai to applicant No. 1 Kundanlal and in case the prosecution is able
to establish this fact, the offence disclosed against applicant No. 2 would be under section
403 I.P.C. Section 222(1) provides when a person is charged with an offence consisting of
several particulars, a combination of some only of which constitutes a complete minor
offence, and such combination is proved, but the remaining particulars are not proved, he
may be convicted of the minor offence, though he was not charged with it. Sub-section (2) of
section 222 provides that when a person is charged with an offence and facts are proved
which reduced it to a minor offence, he may be convicted of the minor offence, although he is
not charged with it. Offence under section 403 is certainly a minor offence in relation to the
offence under section 406 I.P.C.
he delay in filing the F.I.R. has been duly explained. The evidence on record is that the
applicant No. 1 kept on dodging Ramakant (P.W. 2) regarding the return of the gold bangles.
Initially when Ramakant (P.W. 2) had gone for the return of the bangles, the accused told him
that the bangles had been sent to Calcutta for minakari work. Subsequently, when his father
went to enquire about the bangles, the accused told him that the bangles had been sent to
Raigad. It appears that Rameshwarlal (P.W. 4) had gone along with applicant No. 1
Kundanlal to Raigarh but at Raigarh, Kundanlal suddenly left. It is in these circumstances,
that there was delay in filing the F.I.R. which, under the circumstances, has been duly
explained and nothing turns out on this argument of learned Advocate for the applicants. It
appears that the statements of some of the witnesses were not recorded by the police and they
were examined in the Court. There is no law which prohibits the prosecution from examining
in the Court witnesses whose statements have not been recorded. The applicants had full
opportunity to cross-examine these witnesses and in the circumstances, no prejudice can be

said to have been caused to the applicants. The non examination by the I.O. is not fatal in the
light of the evidence on record.
Taking into consideration the facts and circumstances of the case, I am of the opinion that the
ends of justice would be met by imposing imprisonment already undergone during the
proceedings as substantive imprisonment on the applicants and fine of Rs. 25,000/-, in so far
as applicant No. 1 Kundanlal Vishveshvarlal Soni is concerned under section 406 I.P.C. and
in default to undergo simple imprisonment for one year. In so far applicant No. 2, Harikishan
Kundanlal Soni is concerned, fine shall be Rs. 15,000/- under section 403 I.P.C. and in
default of payment of fine, the applicant No. 2 shall undergo simple imprisonment for eight
months. The amount of fine already paid, shall stand adjusted and the liability of the
applicants shall be to deposit the balance of fine. The balance amount of fine shall be
deposited within a period of one month in the trial Court.. The fine may accordingly be
deposited in the trial Court within a period of one month and report of compliance be filed in
this Court. In case, the fine is not deposited within a period of one month, the trial Court shall
take coercive step against the applicants. The matter be listed on order board after one month
for report of compliance. In case the fine is paid, a sum of Rs. 10,000/- shall be paid to the
complainant as compensation. The gold bangles, in question, shall be returned to the
complainant. The revisions are accordingly partly allowed while reducing the substantive
imprisonment already undergone during the proceedings. Fine in case of applicant No. 1 is
enhanced from Rs. 2,000/- to Rs. 25,000/- and in case of applicant No. 2 the fine is enhanced
from Rs. 2,000/- to Rs. 15,000/-.
17. The revision application stands disposed of accordingly in aforesaid terms.
Joseph Salvaraj A vs State Of Gujarat & Ors on 4 July, 2011 god tv
Respondent No. 4 - complainant, Living Water Finney, lodged an FIR on 05.09.2006 at 22.15
hrs with Odhav Police Station, Ahmedabad City, complaining therein that the Appellant has
committed offences under Section 406, 420 and 506(1) of the Indian Penal Code (hereinafter
shall be referred to as `IPC').
3. Respondent No.4 was working as Administrative Officer in "Amaaru Family Education
Trust" at Ahmedabad and claimed that he has been residing Crl. A. @ S.L.P. (Crl.) No.2409
of 2007 there, leading life peacefully. He also stated that Shri Dharmendra P. Rami @
Laldbhai was running business of Siti Cable in Bapi Nagar area at Ahmedabad, was known to
him for many years and both of them enjoyed good relations with each other.
4. Sometime in the year 2005, complainant had gone to Hyderabad at his wife's place where
he had the occasion to watch "God TV" which influenced him deeply and profoundly
touching his holy spirit.
He wanted to share his experience with the Christian community of Ahmedabad so that they
may also be blessed through this religious channel. On his return to Ahmedabad, he
approached cable operator Mr. Lalabhai, owner of Siti Cable as mentioned above and
requested him to have this channel also in the bouquet of channels offered by him. He also

contacted the Appellant's Company directly, requesting it to allow broadcasting of "God TV"
in certain areas of Ahmedabad through Siti Cables, Ahmedabad.
5. Eventually, with the aid and enterprise of Mr. Lalabhai, they were able to commence
broadcasting of "GOD TV" in the eastern zone of Ahmedabad.
6. Initially, Mr. Lalabhai quoted Rs. 30 lacs for persuading all the three operators to
commence the telecast of "GOD TV" in their respective areas in Ahmedabad but the same
was settled for Rs. 10 lacs.
Thus, according to the complainant, Mr. Lalabhai (and 2 other cable operators) had agreed to
broadcast, religious channel "God TV" at Ahmedabad, after the Appellant had agreed to pay a
sum of Rs. 10 lacs to Mr. Lalabhai.
7. However, it appears that there was no Agreement in writing executed and entered into
between Mr. Lalabhai and the Appellant. Furthermore, there has not been any Agreement
between complainant and either of the aforesaid two parties. According to him, on his own,
he had acted only as a mediator.
8. From time to time, the Complainant kept reminding the appellant about payment of the
amount Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 of Rs. 10 lacs to Mr. Lalabhai. But
according to the Complainant, the appellant deliberately avoided his communications. In the
meanwhile, the cable operators who had started telecasting "God TV" were also pressurizing
the Complainant for the said amount.
9. As mentioned hereinabove for about five months, they enjoyed watching "God TV"
without any disruption but thereafter the reception signals of the said channel developed
some technical snag. Thus, from October 2005, on account of poor quality of receivers, the
reception was also not clear and was blurred. He once again contacted the Appellant who
agreed to send receiver to the Complainant. After having received the said receiver, it was
delivered to Mr. Lalabhai but as per the Complainant's version, by that time the amount of Rs.
10 lacs as agreed to between Mr. Lalabhai and the present Appellant was still not paid.
Having failed to elicit a verbal response, the Complainant thereafter wrote a series of letters
and sent e-mails to the Appellant, Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 ultimately
culminating in a notice dated 21.06.2006, to which the Appellant replied on 18.07.2006,
denying all accusations and liabilities. Then the problem started and Respondent No. 4 lodged
the FIR against the Appellant as mentioned hereinabove.
Laldbhai against the Appellant and the Respondent No.4, Complainant herein, before the City
Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs together with interest thereon. In the
said suit an unconditional leave to defend has already been granted to the Appellant and the
matter is still pending. In the light of the aforesaid submissions, it was contended that it is a
fit case where the FIR deserves to be quashed otherwise the same would amount to abuse of
the process of law.
17. On the other hand, the learned counsel for Respondents especially Respondent No. 4,
contended that intention to cheat the complainant was clearly made out by the action of the
Appellant, ultimately resulting in lodging of F.I.R.

In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating
or a dishonest inducement for the delivery of property or breach of trust by the Appellant.
The present FIR is an abuse of process of law. The purely civil Crl. A. @ S.L.P. (Crl.)
No.2409 of 2007 dispute, is sought to be given a colour of a criminal offence to wreak
vengeance against the Appellant. It does not meet the strict standard of proof required to
sustain a criminal accusation.
26. In such type of cases, it is necessary to draw a distinction between civil wrong and
criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009
(7) SCC 495, relevant part thereof is reproduced hereinbelow:
"A distinction must be made between a civil wrong and a criminal wrong. When dispute
between the parties constitute only a civil wrong and not a criminal wrong, the courts would
not permit a person to be harassed although no case for taking cognizance of the offence has
been made out."
Learned counsel for the Appellant contended that even after going through the FIR, no case
under Section 406 or 420 of the Penal Code was made out.
The FIR was filed by a person who is indisputably not a contracting party and at best by his
own admission, had acted only as a mediator, and had no cause of action to file the
complaint. He has failed to produce any evidence worth the name in support of his allegation
and legally acceptable that the contract was concluded, where under the Appellant was
obliged to pay a sum of Rs. 10 lacs to Mr. Lalabhai.
15. The allegations in the F.I.R. clearly discloses a civil dispute between the parties and the
FIR seems to have been filed only with an intention to harass and humiliate the Appellant.
This was a pre-emptive move by the Complainant.
Thus, looking to the matter from all angles, we are of the considered opinion that the
prosecution of the Appellant for commission of the alleged offences would be clear abuse of
the process of law.
30. The FIR under the circumstances deserves to be quashed at the threshold. We accordingly
do so. The Appeal is, therefore, allowed. The order of learned Single Judge is set aside. The
FIR dated 05.09.2006 lodged by Respondent No. 4 - Complainant with Odhav Police Station,
Ahmedabad stands quashed and all criminal proceedings emanating therefrom also stand
quashed. The parties to bear their respective costs.
Hridaya Rangan Pd. Verma And Ors vs State Of Bihar And Anr on 31 March, 2000
The three appellants,'Hridaya Ranjan Prasad Verma, Manoranjan Prasad Verma and Rajiv
Ranjan Prasad Verma are sons of Late Shri Kashi Nath Prasad Verma. They have three other
brothers who are not directly involved in the present proceedings. Late Kashi Nath Prasad
Verma was the owner of Khasra No. 213, Plot No. 1172, in Village Srinagar, within Siwan

Police Station. On his death his six sons succeeded to the property. Appellant No. 1 is a
neuro-surgeon at Patna; appellant no.2 is the Manager of Pathar Jhora Tea Gardens in
Jalpaiguri and appellant no. 3 is a retired marketing manager of Jay Shree Tea and Industries
Ltd., Delhi. Respondent No. 2, Manish Prasad Singh, an advocate, is the secretary of
Kanishka Sahkari Grih Nirman Samiti Limited, Sewan, (hereinafter referred to as the
Society) a cooperative society engaged in purchasing land from different persons and after
developing and dividing it into small pieces selling the plots to different customers. The
appellants agreed to sell the land in village Srinagar to respondent no. 2 for a consideration of
Rs. 16, 00,000. The respondent paid a sum of Rs. 11, 00,000 to the appellants by way of
drafts drawn in their favour on 7.12.92. The appellants executed a registered sale deed in
respect of the land in favour of the Society. It is the case of the appellants that on insistence of
respondent no.2 two other brothers of the appellants signed the sale deed as witnesses. By
way of a further safeguard the appellants executed a separate indemnity deed on the same day
in which they undertook to indemnify any loss caused to the society on account of any
objection which may be raised by any co-sharer against transfer of the land in future. The
appellants assert that they have delivered possession of the land to the society on the same
day. Another brother of the appellants Priya Ranjan Prasad Verma also executed a sale deed
in favour of the society alienating his portion of the land.
On registration of the sale deed respondent No. 2 handed over three cheques to the appellants
for the sum of Rs. 5,50,000. When the appellants presented the said cheques in the bank, the
same were dishonoured on account of insufficiency of amount in the account of the drawer.
The respondent no. 2 had issued a separate cheque in favour of Priya Ranjan Prasad Verma
which was also dishonoured for the same reason.
Prior to the execution of the sale deed Akhil Ranjan Prasad Verma brother of the appellants
had filed a suit, Title Suit No. 118 of 1990 for partition alleging inter alia that though the
properties left by their father had been partitioned amongst the brothers in 1971 no division
by metes and bounds had taken place. On 5.12.1992 on the applicaton filed under Order 39
Civil Procedure Code the learned subordinate judge, Siwan passed an interim order
restraining the appellants from disturbing the status quo or transferring the land of Schedule I
to the plaint but no injunction was passed in respect of the land described in Schedule-VI of
the plaint in which the property in dispute in the present proceeding is included. According to
the appellants the plaintiff Akhil Ranjan Prasad Verma did not press his prayer for injunction
in respect of the Schedule IV properties. It is the further case of the appellants that between
9.12.92 to 18.12.92 the respondent No. 2 sold portions of the land sold by them to several
other persons.
When the cheques issued by the respondent No. 2 in their favour bounced the appellants
made several requests to the said respondent for payment of the amount. On each such
occasion the said respondent avoided to pay the amount promising to do so within a short
time. Finally on 21.10.1995 the appellants through their advocate sent a notice to respondent
No. 2 reminding him that the cheques issued by him in favour of the appellants had bounced
due to insufficiency of funds. Finding that respond-ent no. 2 had no intention to pay the

amount, the appellants lodged a first information report under sections 406, 420 and 120 B
IPC with the Siwan Police Station on 11.11.1995 which was registered as Siwan Mafsil Case
No. 191/95. In the said FIR the respondent No. 2 and Avdesh Narayan Rai who was the Vice
President of the cooperative society were named as the accused. The police after investigating
into the allegations made in the FIR filed a charge-sheet against respondent no. 2 and Avdesh
Narayan Rai. The appel- lants also filed three suits for realisation of the amount due to them.
Shortly thereafter on 14.12.1995 the respondent no. 2 filed complaint no. 1282/95 in the
Court of the Chief Judicial Magistrate, Siwan against the appellants alleging commission of
offences under section 418 (Cheating with knowledge that wrongful loss may ensue to person
whose interest offender is bound to protect), section 420 (Cheating and dishonestly inducing
delivery of property), section 423 (Dishonest or fraudulent execution of deed of transfer
containing false statement of consideration), section 469 (Forgery for purpose of harming
reputation), section 504 (intentional insult with intent to provoke breach of the peace) and
section 120B IPC (criminal conspiracy). It is the case of the appellants that the FIR was filed
as a counter blast to the criminal case and the civil suits filed by them against the respondent
No. 2.
In the complaint respondent no. 2 alleged inter alia that by conspiring together all the accused
have defaulted and cheated the society and the complainant by giving false, concocted and
wrongful information and assur- ances saying to have a Sada "Kora" and thus they induced
the complainant to enter into negotiations and also to advance them a heavy amount with
their ulterior design to acquire wrongful gain to themselves and for wrongful loss to the
society and the complainant - both monitory and reputational.
Reading the avernments in the complaint in entirety and accepting the allegations to be true,
the ingredients of intentional deception on the part of the accused right at the beginning of the
negotiations for the transaction has neither been expressly stated nor indirectly suggested in
complaint. All that the respondent No. 2 has alleged against the appellants is that they did not
disclose to him that one of their brothers had filed a partition suit which was pending. The
requirement that the information was not disclosed by the appellants intentionally in order to
make the respondent No. 2 part with property is not alleged expressly or even impliedly in
the complaint. Therefore the core postulate of dishonest intention in order to deceive the
complainant-respondent no.2 is not made out even accepting all the averments in the
complaint on their face value. In such a situation continuing the criminal proceeding against
the accused will be, in our considered view, an abuse of process of the court. The High Court
was not right in declining to quash the complaint and the proceeding initiated on the basis of
the same.
Accordingly the appeals are allowed. The Judgment/Order dated 13-4-1999 of the Patna High
Court in Criminal Misc. No. 22880/1998 and Criminal Misc. No. 24068 of 1998 is set aside
and the proceeding in Criminal Case No. 22/96 pending in the Court of Chief Judicial
Magistrate, Siwan is quashed.


Manish Mittal & Others vs State & Others on 30 April, 2010
Mr. P.K. Sharma, Assistant General Manager, State Bank of India, (C&I Division), Chandni
Chowk, Delhi and Mr. Manish Mittal have filed the present petitions under Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as the Code, for short) for quashing
of Order dated 2nd June, 2007 passed by the learned Metropolitan Magistrate taking
cognizance and summoning them as accused to stand trial for offences under CRL.M.C. Nos.
2683/2007 & 2136/2008 2 Section 425/427 of the Indian Penal Code, 1860 (hereinafter
referred to as IPC, for short). The impugned order dated 2nd June, 2007 reads as under:"Counsel for the Complainant Arguments on summoning order heard. Record perused.
I found sufficient material on record to summon the accused for the offence U/s.425/427 IPC,
as prima facie case is made out against the accused.
Issued summons to the accused on PF/RC for 18/09/07"
2. Dr. Mahesh Chand Jain, the respondent No. 2 has filed a criminal complaint in his
individual capacity as a partner and on behalf of partnership firm M/s Biopolymer Systems.
From the complaint, pre summoning evidence and documents relied upon by Dr. Mahesh
Chand Jain, the following facts are apparent (i) Dr. Mahesh Chand Jain and Mr. Manish Mittal are partners of the partnership firm and are
bound by the terms of the partnership deed dated 15th July, 1994. The said partnership firm
has two current accounts with State Bank of India, (C&I Division), Chandni Chowk, Delhi,
which could be operated jointly by both the partners for the purpose of withdrawal. It is
stated in the complaint that arbitration applications are pending before the Additional District
Judge for dissolution, settlement of accounts and disputes of the partnership firm.
(ii) The complainant by letter dated 5th September, 2002 had called upon Mr. Manish Mittal
to arrange for conversion CRL.M.C. Nos. 2683/2007 & 2136/2008 3 of balance lying in the
current account into a fixed deposit receipt (FDR, for short) till dissolution, settlement of
accounts and disputes of the partnership firm by the arbitrator. It is stated in the complaint
that this was pragmatic and prudent to prevent loss of value and utility of firms property and
was in accord with Section 12(b) of the Partnership Act, 1932 (Partnership Act, for short)
which requires that every partner is bound to attend diligently to his duties in conduct of
business. It is stated that Mr. Manish Mittal by his letter dated 12th September, 2002 called
upon Dr. Mahesh Chand Jain to first deposit Rs.4,50,000/- along with the interest accrued on
it in the said bank account. This amount received from Haryana Financial Corporation was
deposited in the Union Bank of India, Model Town, Delhi, a new proprietory account in the
name of the firm opened by Dr. Mahesh Chand Jain. It was stated that only after the deposit
he i.e. Mr. Manish Mittal, shall take a prudent decision. It was further alleged in the letter that
Dr. Mahesh Chand Jain was trying to cover up his illegalities and misdeeds.

(iii) By letter dated 17th September, 2002, Dr. Mahesh Chand Jain called upon The Chief
Manager, State Bank of India, (C&I Division), Chandni Chowk, Delhi to convert the credit
balance in the account into FDR. This was followed by letter dated 10th October, 2002 to Mr.
Manish Mittal stating that non-conversion of the credit balance in the current account into
FDR was causing loss of Rs.170/- approximately per day on account of loss of interest. It was
also stated that the State Bank of India CRL.M.C. Nos. 2683/2007 & 2136/2008 4 had
informed that till both the partners agreed, FDR cannot be issued by transferring the amount
from the current account. By another letter dated 10th October, 2002, Mr. P.K. Sharma,
AGM, State Bank of India (C&I Division), Chandni Chowk was reminded about an earlier
letter dated 17th September, 2002 and asked to issue an FDR. Copy of the correspondence
exchanged between Dr.Mahesh Chand Jain and Mr. Manish Mittal was enclosed.
(iv) It is stated in the complaint that Mr. Manish Mittal and Mr. P.K. Sharma, AGM, State
Bank of India (C&I Division), Chandni Chowk, Delhi had deliberately omitted to convert the
credit balance into an FDR which resulted in diminishing the value and utility of property of
the partnership firm and affected the firms property as interest could not be earned. Thus,
both Mr. Manish Mittal and Mr. P.K. Sharma have intentionally and deliberately caused loss
or damage to the property of the partnership firm and Dr. Mahesh Chand Jain, the partner and
were liable to be prosecuted under Sections 425 and 427 of the IPC. It is stated that till the
date of filing of complaint on 31st October, 2002, loss of Rs.6,800/- on account of interest
was caused.
As noticed above, even the Assistant General Manager of State Bank of India, Chandni
Chowk, Delhi, Mr. P.K Sharma has been summoned. A bank Manager or a bank is bound by
the rules and regulations and Reserve Bank of India guidelines for opening or conversion of
credit balance lying in a current account into an FDR. As per the complaint itself, the
admitted position is that the current accounts require joint signatures of both parties.
Admittedly, Mr. Manish Mittal has not signed any of the letters or authorized withdrawal or
conversion from the current account into FDR. Therefore, as per the terms of operation given
to the bank, the current bank account could not be operated and debited. No case whatsoever
is made out against Mr. P.K. Sharma, Assistant General Manager of the bank.
Dr. Mahesh Chand Jain in the complaint and the pre- summoning evidence has stated that Mr.
Manish Mittal had not acted prudently when he did not join and accept the petitioners
request for conversion of the amount lying in the current account into an FDR. Failure to act
prudently does not constitute an offence under Section 425/427 of the IPC. As stated
above, the CRL.M.C. Nos. 2683/2007 & 2136/2008 12 first ingredient of Section 425 of the
IPC is wrongful loss or damage and not failure to act prudently.
Under Section 12(b) of the Partnership Act, a partner is duty bound to diligently attend to his
duties in conduct of business but degree of liability is not widely interpreted and extended. A
loss sustained by a firm may be imputed to conduct of one partner more than another, still if
the former has acted bonafidely and without culpable negligence, loss must be borne equally
by all. A partners liability to indemnify the firm arises only when the loss is due to his fraud,
culpable negligence or willful default. The said strict parameters have to be kept in mind to
bring an act of a partner within mischief under Section 425 of the IPC.

The learned Metropolitan Magistrate has clearly erred in taking cognizance of an offence
under Section 425/427 of the IPC and erred in summoning the petitioners. Thus the
allegations made in the complaint, pre-summoning evidence and the documents filed by the
complainant do not establish any offence under Section 425/427 of the IPC. The present case
is duly covered under para 102 of the judgment in State of Haryana versus Bhajan Lal &
Others 1992 Supp. (1) SCC 335, in which the Supreme Court has observed that a summoning
order can be interfered with and quashed when allegations or complaint made, on face value
ex facie does not establish commission of any offence.
CRL.M.C. Nos. 2683/2007 & 2136/2008 15
17. In view of the aforesaid discussion, the present petitions are allowed and the summoning
order and the order taking cognizance dated 2nd June, 2007 passed by the learned
Metropolitan Magistrate is quashed. No costs.
Krishna Gopal Singh And Ors. vs State Of U.P. on 9 February, 1999
Appellants herein were formerly members of the Pradeshik Armed Constabulary of the State
of Uttar Pradesh. On the allegation of a revolt having been committed by members of the
P.A.C. at Fatehpur proceedings have been initiated against the appellants departmentally as
well as before the criminal Court for various offences. Though the trial Court acquitted all the
appellants a Division Bench of the High Court of Allahabad, on an appeal filed by the State,
set aside the order of acquittal and convicted all of them under different provisions, but the
sentence was limited to the period of imprisonment which each of the appellants had already
undergone. In the light of the aforesaid sentencing process adopted by the Division Bench of
the High Court it would not have been necessary for the appellants to approach this Court but
we understand that the effort was to get rid of the stigma of conviction for helping the
appellants to have the service benefits unaffected.
2. The provisions under which appellants were convicted are the following:
Section 148, Section 395, Section 427 read with Section 149 of the Indian Penal Code;
Section 6(b) and Section 6(c) of the U.P. Pradeshik Armed Constabulary Act, 1984 and
Section 3 of the Police (Incitement to Disaffection) Act, 1922.
3. The substance of the allegations made against the appellants was this :
The first appellant exhorted the other members of the P.A.C. to take arms as army had set out
from Kanpur to take over the charge of Fatehpur Armed Reserve center on the orders of the
State Government. Upon the said exhortation all the appellants and some other members of
the Constabulary broke open the armoury and took out arms and ammunitions therefrom and
pitched them at various places to meet the oncoming army. Some of them proceeded to police
lines also.

4. It is admitted by the learned Counsel for the respondent-State that none among the
appellants is alleged to have inflicted any injury to any other person or to have intimidated
any person with injury. For sustaining a conviction under Section 395, I.P.C. a finding is sine
qua non that appellants have committed the offence of robbery and if the number of the
assailants crossed the figure of five the offence would escalate to Section 395. But accepting
the entire allegations against appellants to be true we fail to notice any material to bring the
offence within the contours of the definition under Section 390 (robbery) I.P.C. In view of the
aforesaid deficiency learned Counsel for the respondent state could not persist with his
contention for sustaining the conviction under Section 395 of the Indian Penal Code. That
section has to go out from the purview of the convictions consequently.
An endeavour was made by the learned Counsel for the appellants to show that the trial Court
was correct and the High Court was wrong in entering a conviction against the appellants
under the remaining Sections of offences. We have gone through the judgment of the High
Court and we heard learned Counsel with reference to the reasonings adopted by the trial
Court. The High Court relied on the testimony of a large number of eye-witnesses who were
members of the Constabulary. The testimony of those eye witnesses extracted in the judgment
of the High Court was helpful to us in appreciating that the High Court has not gone wrong in
reversing the order of acquittal. We are, therefore, not inclined to re-appreciate the evidence
in our jurisdiction under Article 136 of the Constitution.
10. Learned Counsel made a last plea that this Court may afford ameliorative reliefs to the
appellants as otherwise this conviction would be used for proceeding against them
disciplinarily. It is for the appellants to approach the State Government for that purpose and it
is not permissible for us to make any observation either way. Without prejudice to the rights
of the appellants to approach the State Government for securing ameliorative reliefs for the
service conditions on account of the conviction and sentence passed against the appellants,
we dispose of this appeal in the terms mentioned above.

Gorige Pentaiah vs State Of A.P. & Ors on 20 August, 2008
The brief facts which are necessary to dispose of this appeal are recapitulated as under:
Bakaram Eswar, respondent No.3 herein, on 15.6.2004, filed a complaint against the
appellant in the Police Station, Uppal, Hyderabad which reads as under:
"To The Sub-Inspector of Police, Uppal.
Subject: One Gorige Pentaiah s/o Bakkaiah of Uppal Village has come to our 3200 sq. yards
of land in Sy. No. 80 of Peerjadiguda with his men at 11.30 in the night and demolished the
wall and went away. You are requested to take action. Apart from that though on 27.5.2004
said Gorige Pentaiah s/o Bakkaia abused us with the name of our caste no action is taken

against them. I am requesting you to take action against the said people. I am filing all xerox
copies of documents to show my rights in the said land. Said Pentaiah obtained pass books
and pahanies in his name illegally in respect of our land in Sy. No. 80 and has been harassing
us. R.D.O. has stayed the said entries. You are requested to take action against the said
pentaiah and his men who demolished the compounded wall of our plot. We are also afraid
that they may come at any time and kill us. Said Pentaiah drove our security guards Ramulu
and Sudhakar and demolished the wall. You are requested to take action against the said
In the instant case, the allegation of respondent No.3 in the entire complaint is that on
27.5.2004, the appellant abused them with the name of their caste. According to the basic
ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the
accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he
(respondent No. 3) was intentionally insulted or intimidated by the accused with intent to
humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that
the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he
intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place
within public view. When the basic ingredients of the offence are missing in the complaint,
then permitting such a complaint to continue and to compel the appellant to face the
rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.
Similarly, we find that the ingredients of Section 506 of the Indian Penal Code are totally
absent in the complaint.
In the complaint it is not even mentioned that the accused had intimidated or threatened the
complainant or any one else. In absence of basic ingredients of the section in the complaint,
no case under section 506 IPC can be sustained.
On careful consideration of the prayer made in the second suit, it becomes abundantly clear
that respondent No. 3 was not even in possession of the suit property on the date of incident
and this fact has not been disputed by the learned counsel appearing for the State of Andhra
Pradesh. When respondent No.3 was not even in possession of the land in question, the
allegation made in the complaint, that the appellant demolished the wall on 14.6.2004, could
not arise. The allegations are totally baseless and without any foundation. On the face of it, it
looks that the criminal complaint filed by the respondent No. 3 was totally false and
frivolous. The complaint was filed with an oblique motive. In this view of the matter, charges
under sections 427 and 447 are also wholly illegal and unsustainable in law.
In our considered opinion, filing of such a frivolous complaint in the instant case is a total
abuse of process of law. Consequently, we set-aside the impugned judgment passed by the
High Court and quash the complaint emanating from Crime No.281 of 2004, Police Station,
Uppal, Hyderabad.
The appeal is accordingly allowed and disposed of.
Coins & stamps
Emperor vs Qadir Bakhsh And Ors. on 14 November, 1907

This is an appeal by the Local Government from an original order of acquittal passed by the
efficiating Sessions Judge of Benares. The three accused were committed to his Court
charged with the offence of counterfeiting coin, punishable under Section 231, Indian Penal
Code. It is proved and admitted that under the direction of Qadir Bakhsh the first accused, the
other two accused, who are workmen in his employment, manufactured, out of German
silver, coins which we have satisfied ourselves by inspection closely resemble genuine coins
current in the Nepal State. The learned Officiating Sessions Judge was of opinion that as it
was not the intention of the accused that deception should be practised, nor had they
knowledge that deception was likely to be practised, no offence was committed. He refers to
the explanation appended to Section 231, Indian Penal Code, which, we may remark, has no
application to the case. He overlooked the provisions of Section 28 of the Code in which the
word counterfeit is defined and in particular the second Explanation appended to that section,
That Explanation is as follows: "When a person causes one thing to resemble another, and the
resemblance is such that a person might be deceived thereby, it shall be presumed, until the
contrary is proved, that the person so causing the one thing to resemble the other thing
intended by means of that resemblance to practise deception or knew it to be likely that
deception would thereby be practised." As we have said above, the coins manufactured by the
accused are very, good imitations of a genuine coin, and we have no hesitation in holding that
persons might be deceived by the resemblance. That being so, the presumption referred to in
the Explanation arises, and it is for the accused to prove that their intention was innocent or
that they did not know that it was likely that deception would be practised. The learned
Counsel who has appeared on behalf of the accused contends that the accused have
discharged the onus which lies on them. In support of his contention he has referred to the
low charge made by the accused for manufacturing the coins; to the fact that the accused
manufactured a larger number of coins which are not current than of coins which are current
in Nepal; to the frank admission made by the accused, and to the absence of concealment.
These are undoubtedly circumstances to be taken into consideration, but we are of opinion
that they are insufficient to discharge the burden which the law imposes on the accused. As
the learned Government Advocate has urged in his argument, it is a dangerous thing to
manufacture imitations of current coins, and this is no doubt the reason for the stringency of
the law as contained in Explanation 2 of Section 28 of the Indian Penal Code. We are
therefore of opinion that the appeal must be allowed. The learned Government Advocate,
however, does not press for a heavy sentence and explains that the object of the appeal is to
obtain a pronouncement by this Court as to whether the law laid down by the Court below
was correct. Having regard to this and to the circumstances of the case we impose a light
sentence. We allow the appeal, set aside the order of acquittal, and convicting Qadr Bakhsh,
Algu and Karim Bakhsh under Section 231, Indian Penal Code, direct that the District
Magistrate do send for the three accused and detain them in his Court until the rising of the
Court. We further order that, the accused Qadir Bakhsh do pay a fine of Rs. 10 or in default
undergo one month's rigorous imprisonment.
Joti Parshad vs State Of Haryana

The sole appellant herein was tried along with five others for offences punishable under
Sections 254, 255, 258, 259, 467 read with 120-B I.P.C. The gravamen of the charge was that
all of them conspired and agreed to do the illegal act of counterfeiting of Government stamps
and in pursuance of that conspiracy, counterfeited Government stamps and sold the same and
they were also found in possession of the counterfeit stamps and some of them were found in
possession of instruments and other materials intended to be used for the purpose of
counterfeiting stamps. The trial court acquitted all of them. The State preferred an appeal.
The High Court while confirming the acquittal of other accused, however, convicted the
appellant Joti Parshad under Section 258 and 259 I.P.C. and sentenced him to undergo three
years' R.I. and a fine of Rs. 500/- on each count and in default of payment of fine to undergo
further R.I. for three months on each count, on the ground that the prosecution proved that the
appellant had been selling counterfeit court-fee stamps and while doing so he had knowledge
or atleast reason to believe that the said stamps which he was selling were is counterfeit.
Shri M.G. Devashayam, who was working as S.D.M., Jagadhari, noticed on 26th July, 1972
that some counterfeit court-fee stamps had been used on some court papers. He immediately
conducted a raid and searched the box containing judicial and non-judicial stamps belonging
to the appellant who was a licensed stamp vendor. Shri Devashyam seized them under a
memo and then sent a letter to the police station for registration of a case. P.W. 15 the
Inspector registered the case and took up the investigation. On the same day he recorded the
statement of the appellant wherein he is alleged to have stated that some of the other accused
belonging to Dehradun had been selling counterfeit court-fee stamps to him at Jagadhari and
if their houses are searched, such stamps could be recovered. P.W. 15 reached Dehradun the
next day and interrogated Rajeshwar, A-2 and recorded his statement and at his instance
recovered a large number of stamps. P.W. 15 also recorded the statements of other accused
and effected some recoveries under some memos. After completion of the investigation the
charge-sheet was laid. The prosecution charge-sheeted 10 accused. Additional Sessions
Judge, Ambala, however, discharged four of them as no prima facie case was made out
against them. The remaining six accused were tried by the Additional Sessions Judge. The
prosecution examined several witnesses. The plea of the accused had been one of denial. For
the purpose of the present case we are not concerned with that part of the prosecution case
against A-2 to A-5 whose acquittal has been confirmed by the High Court. So far the present
appellant is concerned he took the plea that he was a petty stamp vendor at Jagadhari and he
was arrested on mere suspicion and that he purchased all the stamps judicial as well as nonjudicial from the treasury at Jagadhari for sale to the public and that he had no link or any
connection with the other accused. The trial court acquitted all the accused mainly on the
ground that P.W. 11 Madan Lai had been appearing as a police witness in a number of cases
and that his antecedents are questionable and many of the seizures based on his evidence
cannot be accepted.
Before the High Court the same plea was taken by all the accused. The Division Bench of the
High Court agreed with the reasoning of the trial court so far as the other accused are
concerned and confirmed their acquittal. However, the case regarding the recovery of
counterfeit stamps from the possession of the appellant was accepted mainly on the basis of

the evidence of P.W.I Shri M.G. Devashayam, S.D.M. The appellant specifically admitted the
recovery but took the plea that he had purchased all the stamps from the treasury at Jagadhari
as genuine stamps. The stamps recovered from the appellant were sent to the Stamp Expert at
Nasik. P.W. 14, the Stamp Expert examined the same and identified the various court-fee
stamps of various denominations which had been counterfeited.
There is absolutely no material whatsoever to show that the counterfeit stamps were in fact
purchased by him from the treasury. A bare allegation by way of an explanation by the
accused-appellant that he purchased all the stamps including the counterfeit ones from the
treasury appears on the face of it to be false, as he has neither produced registers maintained
by him nor did he make even an effort to summon the treasury records. There is no material
whatsoever even to probablise such a plea. In these circumstances the only inference that can
be drawn is that he had "knowledge" and "reason to believe" that the stamps which he had
in his possession and which he was selling or offering to sell, were counterfeit ones. These
ingredients of the two provisions of law are fully established. Therefore the convictions are
correct. The offence also is a serious one and the sentence awarded is not excessive. The
appeal is therefore dismissed.
Amruta Gadtia vs Trilochan Pradhan And Anr. on 31 July, 1992
The appellant assails the acquittal of the two respondents who are respectively son and father.
While respondent No. 1 had been charged under Section 493, IPC, respondent No. 2 had been
charged under Section 354, IPC. The allegations against the respondents were that respondent
No. 1 had been proposing marriage to the appellant and was asking her for having sexual
intercourse. On the Dola Purnima day of 1983 the appellant was called to the house of
respondent No. 1 by his sister Ila Pradhan. There one Indu Pradhan gave two garlands and the
appellant and respondent No. 1 exchanged the garlands. They closed the door and had sexual
intercourse. Thereafter on several occasions they had sexual intercourse for which the
appellant became pregnant. Respondent No. 1 promised the appellant to marry her properly
and proposed to take her to Titilagarh to keep her there. He gave her some medicines and
suggested her to take some injections which she refused. She informed the matter to her
parents. Her father convened a caste Panchayati. Both the respondents attended the
Panchayati but nothing was decided. While the appellant was returning from the Panchayati
along with her father, the respondent No. 2 and others quarrelled with them and respondent
No. 2 dragged her cloth. It is the further case that the appellant has in the meantime given
birth to a child who is still with her. The defence of the respondents is denial of the
allegations. Respondent No. 2 has taken the stand that the caste people had asked him to
accept the appellant but both the father and son did not abide by their desire and therefore the
case has been falsely started.

The section does not penalise mere cohabitation or sexual intercourse with a woman who is
not lawfully married to him. The section is attracted only when certain other ingredients are
also associated therewith. The section envisages the case when a man deceitfully induces a
woman to have sexual intercourse with him causing her to believe that she is lawfully
married to him. The essence of the section is therefore the deception caused by a man on a
woman, in consequence of which she is led to believe that she is lawfully married. In order to
establish deception there must first be allegations that the accused falsely induced her to
believe that she is legally wedded to him. In the complaint in this case there is no allegation
of any such deception or inducement. In a case where both the man and woman fully knew
that they are not husband and wife and no ceremony of marriage took place between them,
there is no question of one of them believing otherwise. Even if the entire Allegations in the
complaint are taken as true the section is not being attracted. The allegation is that though
they are not husband and wife they had sexual union during late hours in the night for a pretty
long time. What is alleged in the complaint is only a promise to marry in future. The strange
part of it is, there is the further allegation that one day they went for registering the marriage,
but the petitioner ran away from there and even thereafter she was submitting herself to him
regularly for liaison. The facts cannot at any rate attract Section 493, IPC."
In this background of law, it has to be seen how far the charge against the respondent No.1has
been established. P.W. 2 nowhere has stated that respondent No. 1 practised deception on her
or that by such deception she was induced to believe to have become his wife. All her
evidence is that once they met at the house of respondent No. 1, there was exchange of
garlands and then they closed the doors and had sexual intercourse. There was not a single
utterance of the respondent No. 1 holding out that by such process they had become husband
and wife and that it was a form of marriage. On the contrary it is her positive statement that
when she became pregnant the respondent No. 1 promised to marry her properly which
would go to show that the appellant was conscious of the fact that there was no proper
marriage between them, a fact which was also admitted by herself saying that she was
conscious of the fact that in their caste a marriage means a bridegroom coming with his
relative the priest chanting, feast being given to the relatives and the caste people, and then
the bride being taken to the house of the bridegroom. She also admitted that she had never
seen any marriage performed by exchange of garlands. There is thus singular lack of any
evidence of any deception having been practised upon P.W. 2 and hence whatever may be his
responsibility otherwise, the charge under Section 493 I PC cannot be sustained against
respondent No. 1. Failing in such attempt, it has been submitted by Mr. B. P. Ray, learned
counsel appearing for the appellant, that as the girl was a minor at the time of commission of
the offence, the case should be remitted to the trial court for making respondent No. 1 stand
trial under Section 376 IPC. The evidence of P.W. 2 shows that the court below had assessed
her age to be eighteen years on 27-9-85. P.W. 1 has given her age as sixteen years. In the
judgment the court below has assessed her age to be between 16 and 18 years. There is hence
no conclusive proof that P.W. 2 was a girl of below sixteen years on the date of the
occurrence. Tht being so, I am not inclined to agree with Mr. Ray to make respondent No. 1
stand a trial again under Section 376 IPC.

5. About the charge under Section 354 IPC against respondent No. 2, it has to be said that
there is no evidence worth the name. Though in the complaint petition the appellant made
allegation of respondent No. 2 having pounced upon her and stripping her naked, yet all that
she stated in her evidence was that while she was returning along with others from the caste
meeting. 4 to 8 persons quarralled with them and respondent No. 2 dragged her cloth. There
learned trial court did not believe her statement because of the admitted enmity between the
families and acquitted the respondent No. 2 of the charge. In an appeal against acquittal I am
not inclined to take a different view of the evidence and convict the respondent No. 2.