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REPORTABLE

IN THE SUPREME COUR OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1838  OF 2014 [Arising out of SLP(Crl.) No.4540 of 2013]

Ghanshyam Sharma  …Appellant

Versus

Surendra Kumar Sharma & Ors. …Respondents

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. Aggrieved  by  the  judgment  and  order  dated  12th  

September, 2012 in Criminal Misc. Application No.34280 of  

2011,  the  defacto  complainant  in  case  No.1743/IX/2009,  

arising out of Case Crime No.246 of 2009 on the file of the 1st  

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Additional  Chief Judicial Magistrate, Mathura, preferred this  

appeal.

3. The  respondents  are  the  accused  in  the  

abovementioned  case.   By  the  impugned  order,  the  High  

Court  quashed  the  proceedings  in  the  abovementioned  

criminal case on the file of the trial Court.  

4. It is alleged that there was an agreement between the  

appellant  and  the  contesting  respondents  (1  to  3)  

whereunder  the said  respondents  agreed to  sell  a  plot  of  

land admeasuring 400 sq. yards to the appellant herein for  

an amount of Rs.44,00,000/-.  It is alleged that as per the  

agreement, the appellant did, in fact, make some payment.

5. On 11.7.2009, the appellant complained to the police  

that  the  father  of  the  contesting  respondents  herein  had  

called  the  appellant  herein  on  telephone  and  asked  the  

appellant to make the payment of the balance amount to the  

first  respondent  herein.   Accordingly,  the  first  respondent  

approached the appellant.  Both of them went to the bank in  

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a car belonging to the first respondent wherein the appellant  

withdrew  an  amount  of  Rs.16,68,000/-.   Both  of  them  

proceeded to the house of  the father  of  the respondents.  

When  they  were  about  to  enter  the  house,  the  first  

respondent insisted that the appellant leave the money in  

the car itself.  The appellant left the money in the car and  

went into the house of the respondents.  While the appellant  

and the father of the respondents were discussing, the first  

respondent went out of the house and returned after a while  

to inform the appellant that the glass of the vehicle, in which  

money was kept, was broken and the money was stolen.

6. In  the  abovementioned  background,  the  appellant  

lodged a complaint with the police praying that action be  

taken against the respondents.   

7. The  police  investigated  the  case  and  filed  a  

chargesheet under Section 406 and 420 IPC.  The trial Court  

summoned  the  accused  (respondents  herein).   The  

respondents approached the High Court under Section 482  

Cr.P.C.  praying that  the criminal  proceedings be quashed.  

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The  said  application  was  allowed  by  the  High  Court  and  

hence the instant appeal.

8. The basic facts that the appellant withdrew money from  

the  bank,  went  to  the  house  of  the  respondents  

accompanied by the first respondent and left the money in  

the  car  of  the  first  respondent  do  not  appear  to  be  in  

dispute.  On the other hand, from the impugned judgment it  

appears that the argument before the High Court was that  

the offences under Section 406 and 420 IPC are not made  

out on the facts alleged in the FIR.  The submissions made  

before the High Court can be culled out from the impugned  

order and are as follows:

“Two fold submissions have been made by the learned  counsel for the applicants:-

1. That the facts disclosed in the report as well as in  the  statement  of  the  witnesses,  do  not  constitute  the  substantive  offence  under  Section  406  as  there  is  no  entrustment of the property.

2. That the amount of  Rs.16,68,000/- was required to  be  paid  by  the  complainant  in  lieu  of  the  sale  consideration as such offence under Section 420 is not  made out as no inducement was made by the applicants  to deliver  the property to the applicants.   Even if  it  is  assumed  that  money  was  handed  over  this  would  be  

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discharge of liability in respect of the purchase of the plot  by the complainant.  It would not constitute entrustment  as  the complainant  had transferred  this  money without  retaining  any  domain  over  the  said  property  and  the  transferee had absolute right to dispose of the same.”

9. The High Court opined that there was no entrustment of  

the money in the instant case and at best it was a case of  

theft falling under Section 379 IPC.

“What is being alleged in the present case is that  the  money  which  was  carried  by  the  complainant  for  discharge  of  his  liability  for  paying  remaining  sale  consideration  which  amount  was  kept  in  the  vehicle  owned  by  the  applicants.   There  was  no  specific  agreement between the applicant and the accused persons  for  creation  of  dominion  for  the  said  property  which  could constitute an entrustment.  Even the dominion over  the  property is not being reflected in the statement of the  witnesses as also of the complainant.  All that is said that  the  money  was  kept  in  the  vehicle  which  was  found  missing after the complainant and applicants came out of  the house of  one of  the applicants.   By any stretch of  imagination  it  cannot  be  said  that  the  property  was  entrusted to the accused persons.  It is admitted case of  the persons that the money was found missing from the  vehicle.  The question of misappropriating of the same as  such does not arise.  There is no evidence on record that  the said money was taken by the accused.  The money  was found missing from the vehicle.  This at best can be  an offence under Section 379.  In view of this, I do not  find  any  reason  to  allow the  proceedings  to  continue.  Since both the offences under Section 420 and 406 are  not made out, it is one of the rarest cases where the court  is required to quash the proceedings.”

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10. We do not propose to examine the correctness of the  

findings recorded by the High Court in an enquiry that there  

was no entrustment of money.  The fact remains that the  

appellant lost money which was kept in the car of the first  

respondent.   Even  according  to  the  High  Court,  the  case  

would fall  under Section 379 IPC.   The High Court,  in  our  

opinion, grossly erred in quashing the proceedings against  

the respondents with a certificate that it is one of the rarest  

cases where the court is required to quash the proceedings.   

11. Whether the respondents are guilty under Section 379  

IPC or not is a matter of evidence.  The fact that the police  

chose to file a chargesheet under Section 406 and 420 IPC is  

not  conclusive  regarding  the  offences  for  which  the  

respondents-accused are to  be tried.   The trial  Court  can  

always  frame  an  appropriate  charge  if  there  is  sufficient  

material from the report of the police available before it.   In  

case where the material is insufficient to frame a charge, the  

trial Court may either discharge the accused or may direct  

further investigation in the matter.   Before deciding as to  

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which one of the three courses of action mentioned above is  

to be resorted to, the trial Court must examine the content  

of the complaint, the evidence gathered by the investigating  

agency and also scrutinize whether the investigating agency  

proceeded in the right direction.

12. We,  therefore,  allow  the  appeal  and  set  aside  the  

impugned order.

………………………….J.                                                           (J. Chelameswar)

……………………..….J.                              (A.K. Sikri) New Delhi; August 26, 2014

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