GHANSHYAM SHARMAversusSURENDRA KUMAR SHARMA & ORS.

                     [2014) 9 S.C.R. 447


                   GHANSHYAMSHARMA                                 A
                               v.
          SURENPRA KUMAR SHARMA & ORS.
            (Criminal Appeal No.1838 of 2014)
                      AUGUSI 26, 2014
                                                                    B
       [J. CHELAMESHWAR AND A.K. SIKRI, JJ.]

     Code of Criminal Procedure, 1973 - s.482 - Appellant
withdrew money from bank, went to the house of respondents
accompanied by first respondent while leaving the money in C
the car of first respondent - Glass of the car subsequently
broken and the money stolen - Chargesheet against
respondents u/s. 406 and 420 /PC - Trial Court summoned
the respondents - They approached High Court u/s. 482 CrPC
- Criminal proceedings quashed by High Court - Legality of - o
Held: High Court grossly erred in quashing the proceedings
against the respondents - Argument before the High Court
was that offences ulss. 406 and 420 /PC were not made out
on the facts alleged in the FIR - High Court opined that there
was no entrustment of the money and at best it was a case of E
theft falling uls.379 /PC - Thus, even according to High Court,
the case fell uls.379 /PC~ Whether respondents are guilty u/
s.379 /PC or not is a matter of evidence - The fact that the
police chose to file chargesheet u/ss.406 and 420 /PC is not
conclusive regarding the offences for which the respondents-
                                                                     F
accused are to be tried - .The trial Court can always frame
appropriate charge if there is sufficient material from the report
of the police available before it - In case material is insufficient
to frame a charge, the trial Court may either discharge the
accused or may direct further investigation in the matter -
Penal Code, 1860 - ss. 379, 406 and 420.                             G

    It was alleged that there was an agreement between
the appellant and the contesting respondents (1 to 3)

                              447                                   H
    448        SUPREME COURT REPORTS [2014] 9 S.C.R.

A whereunder the said respondents agreed to sell a plot of
  land admeasuring 400 sq. yards to the appellant for an
  amount of Rs.44,00,000/-. It was alleged that as per the
  agreement, the appellant did, in fact, make some payment.

         On 11.7.2009, the appellant complained to the police
8   that the father of the contesting respondents had called
    the appellant on telephone and asked the appellant to
    make the payment of the balance amount to the first
    respondent. Accordingly, the first respondent
    approached the appellant. Both of them went to the bank
C   in a car belonging to the first respondent wherein the
    appellant withdrew an amount of Rs.16,68,000/- and then
    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
D   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 infQrm the appellant that the
E   glass of the vehicle, in which money was kept, was
    broken and the money was stolen. In the
    abovementioned background, the appellant lodged a
    complaint with the police praying that action be taken
    against the respondents. The police investigated the case
F   and filed a chargesheet under Section 406 and 420 IPC.
    The trial Court summoned the accused-respondents. The
    respondents approached the High Court under Section
    482 Cr.P.C. praying that the criminal proceedings be
    quashed. The said application was allowed by the High
G   Court and hence the instant appeal.

          Allowing the appeal, the Court

      HELD:1. The basic facts that the appellant withdrew
  money from the bank, went to the house of the
H respondents accompanied by the first respondent and
  .GHANSHYAM SHARMA v. SURENDRA KUMAR                    449
                SHARMA
left the money in thE!'car of the first respondent do not       A
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 High Court opined that there was no entrustment        B
of the money in the instant case and at best it was a case
of theft falling under Section 379 IPC. This Court does 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              c
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 grossly
erred in quashing the proceedings against the
respondents with a certificate that it is one of the rarest     0
cases where the court is required to quash the
proceedings. [Paras 8, 9, 10] [451-F-G; 452-D; 453-C, DJ

     2. 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 E
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, F
a charge, the trial Court may either discharge the accused
or may direct further investigation in the matter. Before
deciding as to which one of the three courses of action
mentioned above is to be resorted to, the trial Court must
examine the content of the complaint, the evidence G
gathered by the investigating agency and also scrutinize
whether the investigating agency proceeded in the right
direction. The impugned order of the High Court is
accordingly set aside. [Paras 11~ 12) [453-E-H]
                                                                H
    450        SUPREME COURT REPORTS [2014] 9 S.C.R.


A       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No.1838 of 2014.

         From the Judgment and Order dJted 12.09.2012 of the
    High Court of Judicature at Allahabad in Criminal Misc
8   Application No. 34280 of 2011.

          Shiv Ram Sharma for the Appellant.

        C.U. Singh, S.K. Aggrawal, Rakesh Bhargava, Saurav
    Agrawal, Apporva Agrawal, Mushtaq Ahmad, Ravi Prakash
c   Mehrotra, Abhinav Malik for the Respondents.

          The Judgment of the Court was delivered by

          CHELAMESWAR, J. 1. Leave granted.

D      2. Aggrieved by the judgment and order dated 12th
  September, 2012 in Criminal Misc. Application No.34280 of
  2011, the defacto complainant in case No.1743/IX/2009,
  arising out of Case Crime No.246 of 2009 on the file of the 1st
  Additional Chief Judicial Magistrate, Mathura, preferred this
E 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.
F
       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
G 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
H the appellant herein on telephone and asked the appellant to
   GHANSHYAM SHARMA v. SURENDRA KUMAR                        451
       SHARMA [J. CHELAMESHWAR, J.]
make the payment of the balance amount to the first respondent       A
herein. Accordingly, the first respondent approached the
appellant. Both of them went to the bank in a car belonging to
the first respondent wherein the appellant withdrew an amount
of Rs.16,68,000/-. Both of them proceeded to the house of the
father of the responde~t~. When they were about to enter the         B
house, the first respond'-~t insisted that the appellant leave the
money in the car itself. The appellant left the money in the car
and went into the house oftbe 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       c
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.                                             D

     7. The police investigated the case and filea 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          E.
that the criminal proceedings be quashed. The said application
was allowed by the High Court and hence the instant appeal.

     8. The basic facts that the appellant withdrew money from
the bank, went to the house of the respondents accompanied
                                                                     F
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         G
from the impugned order and are as follows:

     "Two fold submissions have been made by the learned
     counsel for the applicants:
                                                                     H
    452         SUPREME COURT REPORTS [2014) 9 S.C.R.


A         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
B
          paid by the complainant in lieu of the sale consideration
          as such offence under Section 420 is not made out as no
          inducement was made by the applicants to deliver the
          property to the applicants. Even if it is assumed that money
          was handed over this would be. discharge of liability in
c         respect of the purchase of the plot by the complainant. It
          would not constitute entrustment as the complainanthad
          transferred this money without retaining any domain over
          the said property and the transferee had absolute right to
          dispose of the same."
D
         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
E         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
F         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
G         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
H         misappropriating of the same as such does not arise.
   GHANSHYAM SHARMA v. SURENDRA KUMAR                         453
       SHARMA [J. CHELAMESHWAR, J.)
     There is no evidence on record that the said money was A
     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 al'low the
     proceedings to continue. Since both the offences under
     Section 420 and 406 are not made out, it is one of the B
     rarest cases where the court is required to quash the
     proceeding.s."
      10. We do not propose to examine the correctness of the
findings recordecl by the High Court in an enquiry that there was
no entrustment of money. The fact remains that the appellant          C
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     D
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           E
 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     F
 matter. Before deciding as to which one of the three courses
 of action mentioned above is to be resorted to, the trial Court
 must examine the content of the complaint, the evidence
 gathered by the investigating agency and also scrutinize
 whether the investigating agency proceeded in the right              G
 direction.
    12. We, therefore, allow the appeal and set aside the
impugned order. •
Bibhuti Bhushan Bose                                Appeal allowed.   H