Ker HC | ‘Property’ under S. 405 IPC not restricted only to movable property: Immovable property can also be the subject matter of offence of criminal breach of trust

Kerala High Court: R. Narayana Pisharadi, J.  allowed a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) by the accused who were charged with the offences of criminal breach of trust, forgery and criminal conspiracy under Sections 406, 466, 467, 471 and 120B of Penal Code, 1860 (hereinafter ‘IPC’).

In the instant case, the partition of a family property took place and a part of the common property was set aside for conducting certain divine and charitable acts. This property was to be managed by the eldest member of the family as a trustee. First petitioner, who was the member of the family managed the aforementioned property as a trustee for the other members of the family since 1970. In order to grab this property, the first petitioner entered into a conspiracy with the Village Officer and forged the public register substituted his name as the owner of the property. Thereafter, the first petitioner gifted the aforesaid property to the second petitioner, his daughter. Execution of this settlement deed was in violation of the provisions contained in the partition deed. Thus, petitioners had committed the offences punishable under Sections 406, 466, 467, 471 and 120B of IPC.

K. Gopalakrishna Kurup, learned counsel for the petitioners argued that it was doubtful that immovable property can be the subject matter of the offence of criminal breach of trust. He also contended that the affirmations in the complaint did not clarify the offences alleged against the petitioners.

The learned counsel for complainants, Alex M. Scaria contended that the court must take into consideration each of the allegations made in the complaint as accurate to determine if the ingredients of the offences alleged were made out or not.

Reliance was laid upon R.K. Dalmia v. Delhi Admn., AIR 1962 SC 1821 to observe that the term ‘Property’ under Section 405 of IPC was not restricted to ‘movable’ property. Therefore, the immovable property can also be the subject matter of commission of an offence of criminal breach of trust. The Court noted that there was an absence of any averment in the complaint regarding entrustment of property in question. With such absence, one of the basic ingredients of the offence of criminal breach of trust was not made out against the accused.

Moreover, the Court cited Ramesh Dutt v. State of Punjab, (2009) 15 SCC 429 to observe that the execution of the settlement deed by the first petitioner in favor of his daughter did not constitute the offence of forgery. Furthermore, the Court held that an attempt was made by the complainant to showcase a matter of civil nature, as a matter of criminal nature. In these circumstances, the first information report, which was based on the complaint, was liable to be quashed. Consequently, the petition was allowed.[Damodara Panicker v. State Of Kerala, 2019 SCC OnLine Ker 1789, decided on 06-06-2019]

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