Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39289 of 2008 ====================================================== Man Mohan Maheshwari, son of Late Om Prakash Maheshwari, resident of village-Ramna Tola, Police Station-Satna, District-Satna (M.P.). .... .... Petitioner. Versus 1. The State Of Bihar. 2. Ramashish Singh, son of Banka Singh, resident of village- Jadopur Road, P.S. Gopalganj, District-Gopalganj. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner : Mr. Vikramdeo Singh, Advocate. For the State : Dr. Mayanand Jha, A.P.P. For the O.P. No.2 : M/s. Yogendra Prasad Sinha & Suresh Pd., Advocates. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL ORDER (Per: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA) ------------ 5 24-01-2012 Heard the parties. The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 16.5.2005 passed in Complaint Case No.455 of 2005/T.R. No.1817 of 2007 by the court of Shri Vipul Sinha, Judicial Magistrate, First Class, Gopalganj, summoning the accused, named in the complaint petition, including the petitioner under Section 204 of the Code of Criminal Procedure, on inquiry, finding prima facie case under [STATUTE] against them. In brief, the case is that the opposite party no.2, filed Patna High Court Cr.Misc. No.39289 of 2008 (5) dt.24-01-2012 2 / 5 2 the complaint petition, numbered as Complaint Case No.455 of 2005 in the court of the Chief Judicial Magistrate, Gopalganj, alleging, inter alia, that he and the accused- petitioner, Man Mohan Maheshwari and the accused, Zakir Hussain, entered into an agreement for the wholesale marketing of multipurpose cement and mixture and plus three scented phenyl in Bihar, Jharkhand, Uttar Pradesh, Bengal and Nepal by the opposite party no.2. As per agreement, the opposite party no.2, gave Rs.8,97,350/- to the accused on different dates through various bank drafts and also in cash, out of which the accused persons supplied the goods for the worth Rs.5,55,334/- only and rest amount Rs.3,42,000/- remained balance with the accused persons. It is alleged that in spite of repeated demand by the opposite party no.2, neither the goods nor the balance amount was returned to him by the accused persons. Lastly, on 18.3.2005, the opposite party no.2 approached the accused persons either to supply the goods or return the balance amount but they refused. As such, the accused persons cheated the complainant-opposite party no.2. On inquiry, under Section 202 of the Code of Criminal Procedure, the court of Sri Vipul Sinha, Judicial Magistrate, First Class, Gopalganj, summoned the accused Patna High Court Cr.Misc. No.39289 of 2008 (5) dt.24-01-2012 3 / 5 3 persons including the petitioner finding prima facie case against them under [STATUTE] . Learned counsel appearing on behalf of the petitioner submits that from perusal of the complaint petition itself, it is clear that the dispute appears to be of breach of the agreement by the petitioner by not supplying the material as per agreement and also refusing to return the money as taken by the petitioner from the opposite party no.2, which is of civil in nature but the learned Magistrate illegally summoned the petitioner under [STATUTE] . It is also submitted that the complaint petition filed by the opposite party no.2 is nothing but is counter blast of the Money Suit No.288 of 2004 filed by the petitioner and others against the firm M/s. Shakti Enterprises, Chandni Chowk, Muzaffarpur, of which the opposite party no.2 is the proprietor, regarding the recovery of Rs.1,84,408/-, which would appear from Annexure- ‘2’ to this application. Learned counsel appearing on behalf of the opposite party no.2 did not dispute about the filing of the money suit by the petitioner and others against the opposite party no.2 for recovery of Rs.1,84,408/- but submits that from the complaint petition, it is clear that the petitioner and the other accused, Patna High Court Cr.Misc. No.39289 of 2008 (5) dt.24-01-2012 4 / 5 4 Zakir Hussain, have committed the breach of the terms of the agreement as they did not supply the material and also refused to return Rs.3,42,000/- to the opposite party no.2, as was given to them by the opposite party no.2, in spite of repeated demands. From the complaint petition, it appears that the opposite party no.2 and the accused persons including the petitioner entered into an agreement to supply the multipurpose cement and mixture and plus three scented phenyl for wholesale supply by the opposite party no.2 in Bihar, Jharkhand, Uttar Pradesh, Bengal and Nepal. Accordingly, opposite party no.2 gave Rs.8,97,350/- to the accused persons including the petitioner on different dates through bank drafts and in cash but the goods were supplied to the opposite party no.2 for Rs.5,55,334/- and the rest amount Rs.3,42,000/- was not returned to the opposite party no.2 by the accused persons including the petitioner in spite of repeated demands. As such, the dispute appears to be of civil in nature. There is nothing in the complaint petition of the opposite party no.2 showing the ingredients required for constituting the offence under [STATUTE] . Under the aforesaid facts and circumstances, the Patna High Court Cr.Misc. No.39289 of 2008 (5) dt.24-01-2012 5 / 5 5 impugned order dated 16.5.2005 passed in Complaint Case No.455 of 2005/T.R. No.1817 of 2007 by the court of Shri Vipul Sinha, Judicial Magistrate, First Class, Gopalganj, summoning the petitioner under [STATUTE] , appears to be an abuse of the process of the Court and the same with respect to the petitioner is hereby quashed. In the result, this application stands allowed. P.S./- (Rajendra Kumar Mishra, 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.