TRILOCHAN SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioners have preferred this petition under Sec. 482 of the Code of Criminal Procedure for quashing the entire criminal proceeding in Lower Bazar Police Station Case No. 136 of 2004, corresponding to G.R. No. 2219 of 2004, pending in the court of Sri D.K. Mishra, Judicial Magistrate, Ranchi including the order impugned dated 2.9.2004 whereby and whereunder Chief Judicial Magistrate, Ranchi has taken cognizance of the offence under Sec. 406/34 of the Indian Penal Code against them.

(2.) THE prosecution story, in brief, is that the informant Ashiwini Kumar Malhotra had presented a written report before the Lower Bazar Police Station stating, inter alia, that on 23.7.2004 he had entered into "Malhotra Dresses" at 8 P.M. situated at Roshpa Tower to purchase cloth and after said purchase, returned back to his home leaving his Mobile inadvertently on the counter of Malhotra Dresses. On recalling such missing after some times, he immediately went to Malhotra Dresses and enquired from the owner of the shop as well as from the other staff but they declined having been in possession of his Mobile and that there was no customer in the shop, therefore, he had reason to believe that four named accused persons removed his Mobile No. Nokia 3200/IMEI - 352518004156423 with Sim card No. 5839162916. He lodged a criminal case which was instituted under Sec. 406/34 of the Indian Penal Code against the petitioners.

(3.) LEARNED Counsel for the petitioners submitted that criminal breach of trust is defined under Sec. 405 of the Indian Penal Code and Sec. 406 is its penal section, and for that there must be entrustment of the property first or with any dominion over property and thereafter, there must be a dishonest misappropriation or conversion of the same by the accused for his own use or disposal of the same in violation of the direction of law which prescribed the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust. Even during investigation the prosecution failed to collect any evidence in respect of any element of any entrustment of Mobile Phone to the petitioners except his statement that he had forgotten his Mobile Phone in the shop and without there being any evidence of any person, having seen the same being left out. Even if the allegation made in the First Information Report taken on its face value, no evidence is constituted in view of the fact that the shop 'Malhotra Exclusive ' is very busy shop of ready made garments visited by a large number of customers during its working hours, may be possibility of lifting it by any one of the customers and, therefore, the continuance of the criminal proceeding of the offence under Sec. 406/34 of the Indian Penal Code is nothing but abuse of the process of the Court causing unnecessary harassment to the petitioners and, therefore, the same may be quashed.