PLJ 2022 Cr.C. 1314
[Lahore High Court, Lahore]
Present: Tariq
Saleem Sheikh, J.
MUHAMMAD SALEEM etc.--Petitioners
versus
STATE etc.--Respondents
Crl. Misc. No. 69238/B of 2021, decided on 23.2.2022.
Criminal Procedure Code, 1898 (V
of 1898)--
----S.
498--Pakistan Penal Code, (XLV of 1860), S. 406--Business partnership--Civil
dispute--Pre-arrest bail--grant of--Complainant is the nephew of one accused
and they were doing business as partners--Accused has a job abroad--dispute
between the parties is of civil nature--Complainant had already instituted a
suit for rendition of accounts in the civil Court--Law recognized a distinction
between investment of money and entrustment--In the former the sum paid or
invested is to be utilized for a particular purpose and in later it is to be retained and preserved for return to
the giver and is not meant to be utilized for any other purpose--Criminal
breach of trust u/S. 406, PPC is not attracted in respect of the property
belonging to the partnership--The proper course for the aggrieved partner was
to sue for accounts rather than instituting criminal proceedings--Element of
entrustment contemplated by Section 405, PPC is conspicuously missing in the
instant case--Pre-arrest confirmed.
[Pp.
1321, 1325 & 1326] A, D, E, F
PLD 2021 SC 886; 2015 SCMR 1575; PLD 1978 Karachi 359;
1980 PCrLJ 818; AIR 1960 SC 889; AIR 1935 Rangoon 453;
AIR 1962 SC 1821; (1970) 1 SCC 521; (1995) 6 SCC 142 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S.
498--Pakistan Penal Code, (XLV of 1860), S. 406--Criminal breach of
trust--Essential ingredients of criminal breach of trust are the accused must
be entrusted with property or dominion and he must have dishonestly
misappropriated the property
or converted it to his own use--An act of breach of trust simpliciter is a
civil wrong and not an offence for which the affected person
may seek a civil remedy--Breach of trust when associated
with dishonestly triggers criminal liability--Even temporary misappropriation
may attract Section 405, PPC.
[Pp.
1322, 1323 & 1324] B & C
(2009) 11 SCC 737; 1996 PCrLJ 2253; AIR 1965 SC 1433 ref.
Mr. Muzaffar Iqbal,
Advocate, with Petitioner No. 2.
Ms. Rahat Majeed, Assistant District
Public Prosecutor for State.
Mr. Muhammad Tauseef Tariq, Advocate,
for Complainant.
Date of hearing: 23.2.2022.
Order
Through this application
Petitioners Muhammad Saleem and Muhammad Faheem seek pre-arrest bail in case
FIR No. 482/2021 dated 30.09.2021 registered at Police Station Atta Shaheed,
District Sargodha, for an offence under Section 406, PPC.
2. This application was dismissed
qua Petitioner No. 1 (Muhammad Saleem) vide order dated 14.02.2022 owing
to his absence in view of the law laid down by the Hon’ble Supreme Court of
Pakistan in Shazaib etc. v. The State (PLD 2021 SC 886).
3. As per FIR, the prosecution case
is that the Complainant entrusted machinery worth Rs. 14,000,000/-to Petitioner
No. 2 (Muhammad Faheem) and his father, co-accused Muhammad Saleem, which they
misappropriated.
4. Arguments heard. Record perused.
5. The Complainant
is the nephew of Muhammad Saleem and they were doing business as partners under
the name and style of M/s. Super Shan Abid Stone Crusher. Since Muhammad Saleem
had a job abroad, Faheem looked after the business on his behalf. He contends
that the dispute between the parties is of civil nature and Section 406, PPC is
not attracted. The Complainant has already instituted a suit for rendition of accounts
in the Civil Court at Sargodha which is pending.
6. The concept of trust
envisages that one person (the settlor) while relying upon another person (the
trustee) and reposing special confidence in him commits property to him. There
is a fiduciary relationship between the two in law. Section 405, PPC defines
criminal breach of trust as follows:
405. Criminal
breach of trust.--Whoever, being in any manner entrusted with property, or
with any dominion over property, dishonestly misappropriates or converts to his
own use that property, or dishonestly uses or disposes of that property, in
violation of any direction of law prescribing 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, or willfully suffers any other
person so to do, commits criminal breach of trust.
7. The essential ingredients of criminal breach of trust under Section
405, PPC are: (i) the accused must be entrusted with property or dominion over
it; and (ii) he must have dishonestly misappropriated the property or converted
it to his own use or disposes it of in violation of any trust or willfully
suffers any other person to do so. The offence of criminal breach of trust
resembles the offence of embezzlement under the English law.[1]
The punishment for ordinary cases is provided in Section 406, PPC but there are
aggravated forms of the offence also which are dealt with under Section 407 to 409,
PPC.
8. The first condition mentions three
important terms: entrustment, dominion and property. “Entrustment” means
handing over possession of something for some purpose without conferring the
right of ownership[2]
while “dominion” refers to “the right of control or possession over something,
such as, dominion over the truck”.[3]
The term “property” has been used without any qualification so it must be understood
in the wider sense. There is no reason to restrict its meaning to movable
property.[4]
Further, the word “property” must be read in conjunction with “entrustment” and
“dominion”. A trust contemplated by Section 405, PPC would arise only when the
property belongs to someone other than the accused.
9. According to
the second condition, the accused must be shown to have mens rea.
Section 24, PPC defines “dishonestly” as the doing of an act with the intention
of causing wrongful gain to one person or wrongful loss to another person.
Thus, in the context of Section 405, PPC the property must be lost to the owner
or he must be wrongfully kept out of it.[5]
Dishonest misappropriation may sometimes be inferred from the circumstances if
there is no direct evidence.[6]
This second condition is satisfied by any one of four positive acts, namely,
misappropriation, conversion, use or disposal of property.[7]
10. The offence of criminal breach of
trust as defined in Section 405, PPC is distinct from the offence of cheating
under Section 420, PPC. Basu explains: “Property obtained by cheating is not
capable of being fraudulently converted under Section 405. The notion of a
trust is that there is a person trustee or entrustee, in whom confidence is
reposed by another who commits property to him; this again supposes that the
confidence is freely given. A person who obtains a property
by trick from another bears no resemblance to a trustee and cannot be regarded
as a trustee under Section 405. The essence of the offence under Section
405 is the dishonest conversion of the property entrusted, but the act of
cheating itself involves a conversion. Conversion signifies the depriving of
the owner of the use and possession of his property. When the cheat afterwards
sells or consumes or otherwise uses the fruit of his cheating, he is not
committing an act of conversion, for the conversion is already done, but he is
furnishing evidence of the fraud he practised to get hold of the property.
Therefore, cheating is a complete offence by itself … The offence under Section
420 is complete as soon as delivery is obtained by cheating, and without further
act of misappropriation there can be no breach of trust.”[8]
11. The law recognizes a distinction between investment of
money and entrustment thereof. In the former the sum paid or invested is to be
utilized for a particular purpose while in the latter case it is to be retained
and preserved for return to the giver and is not meant to be utilized for any
other purpose.[9]
12. It is pertinent to point out that every breach of trust is
not criminal. A mere breach of the contract does not constitute criminal breach
of trust. Ratanlal & Dhirajlal write:[10]
“Every offence of criminal
breach of trust involves a civil wrong in respect of which the complainant may
seek a civil redress for damages in the civil Court. But every breach of trust
in the absence of mens rea or criminal intention cannot justify criminal
prosecution … It may, however, be borne in mind that the same set of facts may
give rise both, to a civil liability and a criminal prosecution. But if there
is no mens rea, or if the other essential ingredients of the offence are
lacking, the same facts may not sustain a criminal prosecution, through a civil
action may lie.”
13. In R. Venkatakrishnan v. Central Bureau of Investigation
[(2009) 11 SCC 737] the Supreme Court of India also emphasised that an act of
breach of trust simpliciter is a civil wrong and not an offence for which the
affected person may seek a civil remedy. However, breach of trust when
associated with dishonesty triggers criminal liability. Thus, even temporary misappropriation
may attract Section 405.[11]
On the other hand, negligence which results in loss of the entrusted property may
make a person liable for damages under the civil law but would not expose him
to criminal prosecution.[12]
14. In a partnership business, a partner has undefined
ownership over all the assets of the partnership along with other partners.
Therefore, he holds them in his own right rather than in a fiduciary capacity.
If he chooses to use any of them for his own purposes, the other partners may
hold him accountable under the civil law. Criminal prosecution of a partner is
possible only if it is shown that he was entrusted dominion over a particular
partnership asset under a special agreement. In Velji Raghavji Patel v.
State of Maharashtra (AIR 1965 SC 1433) the Indian Supreme Court explained:
“Every partner has
dominion over property by reason of the fact that he is a partner. This is a
kind of dominion which every owner of property has over his property. But it is
not dominion of this kind which satisfies the requirements of Section 405. In
order to establish ‘entrustment of dominion’ over property to an accused person
the mere existence of that person’s dominion over property is not enough. It
must be further shown that his dominion was the result of entrustment.
Therefore, as rightly pointed out by Harris C.J., the prosecution must
establish that dominion over the assets or a particular asset of the
partnership was, by a special agreement between the parties, entrusted to the
accused person. If in the absence of such a special agreement a partner
receives money belonging to the partnership he cannot be said to have received
it in a fiduciary capacity or in other words cannot be hold to have been ‘entrusted’
with dominion over partnership properties.”
The Court further said:
“It is obvious that an
owner of property, in whichever way he uses his property and with whatever
intention will not be liable for misappropriation 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,
partnership. 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.”
15. In Debabrata Gupta v. S. K. Ghosh [(1970) 1 SCC 521]
the Supreme Court of India held that FIR under Sections 406 and 424/34 of the
Indian Penal Code (which are pari materia with Sections 406 and 424/34 of the
Pakistan Penal Code) against a partner can only be quashed if it is established
that (a) the dispute is only between the partners; and (b) it does not relate
to any special entrustment of property. In Anil Saran v. State of Bihar and
another [(1995) 6 SCC 142] also it was contended that a partner could not
be said to have committed criminal breach of trust of his own funds so it was a
case of civil liability only. The Supreme Court ruled that “partnership firm is
not a legal entity but a legal mode of doing business by all the partners. Until
the firm is dissolved as per law and the accounts settled, all the partners
have dominion in common over the property and funds of the firm. Only after the
settlement of accounts and allotment of respective share, the partner becomes
owner of his share. However, criminal breach of trust under Section 406 is not
attracted in respect of the property belonging to the partnership firm but is
an offence committed by a person in respect of the property which has been
specially entrusted to such a person under a special contract and he holds that
property in fiduciary capacity under special contract. If he misappropriates
the same, it is an offence.”
16. Jurisprudence in our country has developed along the same
lines. In Abdul Hakim and 2 others v. The
State and another (PLD 1978 Karachi 359) the Sindh High Court quashed the FIR
lodged by one partner against the other as he had received the money on behalf
of the partnership and not in fiduciary capacity. It held that the proper
course for the aggrieved partner was to sue for accounts rather than
instituting criminal proceedings. Similarly, in Kazim Ali Dossa v. Faisal
Malik and 5 others (1980 PCr.LJ 818) the Sindh High Court set aside the
conviction under Section 406, PPC because special entrustment of the firm’s
assets to the accused partner was not established.
17. Now coming to the case on hand, it
is observed that Muhammad Saleem purchased a stone crushing plant from Muhammad
Nauman son of Ashiq Hussain and entered into a partnership with the Complainant
to run it. The Complainant operated it for 19 months and incurred huge losses.
Saleem and Faheem then took over and operated it for four months but could not
give better results. Thereafter they leased it out to third party which left
after four months. Once again the Saleem and Faheem took the charge of the
crusher and got it repaired and upgraded. Both the sides blame each other for
the losses. The Complainant filed a suit for rendition of accounts against
Saleem and Faheem and during the proceedings the parties referred the matter to
Rana Munawar Ghous Khan (MPA) for arbitration. The latter delivered his award
and Muhammad Saleem has filed an application in the Civil Court for making it
rule of Court.
18. The element of entrustment contemplated by Section 405, PPC
is conspicuously missing in the instant case. There is essentially a dispute
between the partners regarding handling of the business and its earnings.
Hence, in view of what has been discussed above, in my opinion, Section 405,
PPC is not attracted. It is also debatable whether it can be invoked even
against Petitioner Muhammad Faheem because he was working as a proxy for his
father and not on his own account.
It appears that the Complainant has lodged the above-mentioned
FIR to mount pressure on the other side.
19. In the result, this application is allowed.
Ad-interim pre-arrest bail already granted to Petitioner No. 2 (Muhammad
Faheem) is confirmed subject to his furnishing fresh bail bond in the sum of
Rs. 200,000/-(Rupees two hundred thousand) with one surety in the like amount
to the satisfaction of the learned trial Court.
(K.Q.B.) Bail confirmed
[1]. Ratanlal & Dhirajlal, The Indian Penal Code, 33rd Edition, p. 2763.
[2]. N.N. Burjorjee v.
Emperor (AIR 1935 Rangoon 453).
[3]. https://definitions.uslegal.com
[4]. R.K. Dalmia and others
v. The Delhi Administration (AIR 1962 SC 1821).
[5]. Basu’s Indian Penal
Code, 14th Edition, p. 2680.
[6]. Jaikrishnadas Manohardas
Desai v. The State of Bombay (AIR 1960 SC 889).
[7]. Ratanlal & Dhirajlal, The Indian Penal Code, 33rd Edition, p. 2763.
[8]. Basu’s Indian Penal
Code, 14th Edition, p. 2679.
[9]. Shahid Imran v. The State and others (2011 SCMR 1614); and Rafiq Haji Usman v.
Chairman, NAB and another (2015 SCMR 1575).
[10]. Ratanlal & Dhirajlal, The
Indian Penal Code, 33rd Edition, p. 2782.
[11]. Kartikeswar Nayak v. State [1996 Cri LJ 2253
(Ori)] approvingly cited in R. Venkatakrishnan v. Central Bureau of
Investigation [(2009) 11 SCC 737].
[12]. Basu’s Indian Penal Code,
14th Edition, p. 2673.