Case Facts:
Patna High Court Cr.Misc. No.8054 of 2010 (4) dt.13-08-2012 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.8054 of 2010 ====================================================== Nand Kishore @ Nand Kishore Prasad .... .... Petitioner/s Versus State of Bihar & Anr .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner : Mr. Ajay, Advocate For opposite party no.2 : None For the State: Mr Md Arif, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 4 13 -08-2012 1. Heard learned counsel for the petitioner as well as learned Addl. Public Prosecutor for the State. None appeared on behalf of opposite party no.2 though notice has already been served upon him. 2. This petition has been filed under section 482 of the Cr.P.C for quashing the order dated 7.12.2009 passed by Susri Kumari Saroj Kirty, Judicial Magistrate, Ist Class, Patna in Complaint Case no. 3136C/2009 by which and whereunder the learned court below, having found prima facie case under [STATUTE] , ordered to issue summons against the petitioner. 3. The brief fact, which lies to file this quashing petition, is that opposite party no.2 filed the above stated complaint case in the court of learned Chief Judicial Magistrate, Patna against the petitioner alleging therein, inter-alia, that he was the super stockiest whereas petitioner was the stockiest and there was business transaction between them since the year 2005 and furthermore, in course of the aforesaid business transaction, there was dues of Rs 4 lakhs and odd for which opposite party no.2 filed money suit bearing Money suit no. 85/2008 in the court of Sub Judge at Patna High Court Cr.Misc. No.8054 of 2010 (4) dt.13-08-2012 2 Patna and also gave legal notice to the petitioner. The petitioner replied the aforesaid legal notice. Petitioner also pressurized opposite party no.2 to withdraw the aforesaid money suit and thereafter, opposite party no.2 filed the above stated complaint case against the petitioner. 4. It would appear that after enquiry, learned Judicial Magistrate passed impugned order dated 7.12.2009 which has been challenged by the petitioner before this court by filing this quashing petition. 5. Learned counsel appearing for the petitioner submits that even if the story of the complainant assumed to be true, then also, it is case of purely civil nature and for recovery of the above stated amount, opposite party no.2 has already filed money suit which is still pending and the averments of the complaint petition do not disclose any criminal offence. It is further contended by him that continuance of the Complaint Case no. 3136C/2009 is nothing but only an abuse of the process of the court. 6. Having heard the above stated contentions I went through the record. 7. Admittedly, opposite party no.2 has already filed money suit in respect of the amount in question and the said money suit is still pending. Furthermore, it is an admitted position that there was business transaction between the petitioner and opposite party no.2 and according to the case of opposite party no.2, there was some dues upon the petitioner and the aforesaid dues arose in course of above stated business transaction. So, even if the story, as propounded, by opposite party no.2 assumed to be true, then also, it appears to be a case of civil Patna High Court Cr.Misc. No.8054 of 2010 (4) dt.13-08-2012 3 nature and continuance of the criminal prosecution is nothing but only an abuse of the process of the court. 8. On the basis of the aforesaid discussions, this quashing petition is allowed and the impugned order dated 7.12.2009 passed by Judicial Magistrate, Ist Class, Patna in Complaint Case no. 3136C/2009 is hereby, quashed. 9. Let this order be communicated to Susri Kumari Saroj Kirty, Judicial Magistrate, Ist Class, Patna or her successor in Complaint Case no. 3136C/2009 for needful. Shahid/- (Hemant Kumar Srivastava, J)

Applicable IPC Section: 406

Statute Text:
Section 406 of the Indian Penal Code. Criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.