Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.45073 of 2011 ====================================================== 1. Jitendra Kumar Gupta, Son of Akalu Sah, Resident of Gorhana Road, Powerganj, Police Station - Nawadah, Ara, District - Bhojpur. 2. Harendra Prasad Gupta, Son of Akalu Sah, Resident of Gorhana Road, Powerganj, Police Station - Nawadah, Ara, District - Bhojpur. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Ashutosh Kumar, Bank manager, union Bank of India, Ara, Bhojpur, Jail Road Ara, Ara(T) P.S. District-Bhojpur Ara. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Mithilesh Kumar Chaudhary, Advocate. For the Opposite Party No.2:Mr. Aditya Sharma, Mr. P.K. Sharan Mr. H. K. Sharan, Advocates. For the State : Ms. Pushpa Sinha, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 3 19-12-2012 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for opposite party no.2. This application has been filed for quashing the First Information Report arising out of Ara Town P.S. Case No.84 of 2010 instituted for the offences under [STATUTE] . It appears from the record that First Information Report has been lodged by the Manager of the Union Bank of India, Branch Ara where allegation has been made that Harendra Prasad Gupta (petitioner no.2) is the proprietor of Patna High Court Cr.Misc. No.45073 of 2011 (3) dt.19-12-2012 2 M/S Jai Gurudeo Traders, Pawar Ganj Godhna Road, Ara. It has been alleged that Harendra Prasad Gupta had taken the facility of cash credit limit upto Rs.2,50,000/- and there is allegation that he could not operate the account and deposited the loan amount properly. The Bank had given reminders for depositing the amount of interest but his inaction had resulted account was declared irregular and over dues. On the request of the petitioner the cash credit facility was turned as a loan amount and he was required to deposit the loan amount along with interest during the period of sixty months but he could not deposit the loan amount regularly. It has further been alleged, instead of payment of loan amount the petitioner had closed the account itself thereby illegally misused Government fund and thereby caused a loss to the Bank. It has further been alleged that the petitioner owed Rs.3,09,834.50 to Bank as loan amount. On inspection of shop premises by the official of the Bank, it was found that the premises itself was closed and the guarantor who happened to be his own brother had also closed the shop. The whole intention of petitioner was to misappropriate the public money. Learned counsel for the petitioner has challenged the Patna High Court Cr.Misc. No.45073 of 2011 (3) dt.19-12-2012 3 First Information Report itself on the ground that the facts mentioned in the First Information Report does not have any tinge of criminal offense rather it is out and out a civil wrong and in the shape of putting pressure for realization of loan amount, the Bank has illegally filed the present criminal case. He has further submitted that the bank has already served notice under section 13 of the SRFAESI Act to the petitioner and as such there cannot be any occasion for lodging the criminal case for the sole purpose of realization of loan amount. It has further been submitted that there are sufficient provision under the Debt Recovery Act as well as SRFAESI Act to realize the loan amount, in case of default, the Bank has ample weaponary to recover the said amount, the Bank has already taken steps, so much so under the SRFAESI Act for the realization of the amount, so the present First Information Report is an abuse of the process of the court and liable to be quashed. Learned counsel for the Bank has submitted, it relates to the loan amount of the Bank but the petitioners are bent upon to misappropriate the fund of the Bank which is a public money and in case of misappropriation of fund, the Bank has rightly exercised the authority by lodging the Patna High Court Cr.Misc. No.45073 of 2011 (3) dt.19-12-2012 4 criminal case. It has further been submitted that it is not proper stage to exercise the power of inherent jurisdiction as the case has only been instituted and no further action has been taken by the police nor any case is pending in any court. He has relied on the judgment of the Hon’ble Supreme Court in the case of Kurukshetra University and another Vs. State of Haryana and another, reported in A.I.R. 1977 SC 2229 where the Hon’ble Supreme Court has held the inherent power under section 482 of the Code of Criminal Procedure should not be exercised in a case when the police had not even commenced the investigation and no proceeding at all is pending in any Court in pursuance of the said F.I.R. Looking to the rival contentions of learned counsel for the parties, the fact is that earlier cash credit facility was granted to the petitioner no.1by the Bank but as he did not pay the money of the Bank the cash credit facility was turned to the loan amount that too he failed to pay the same. It is also a fact that the Parliament has brought different legislation empowering the Bank to realize the loan which has been defaulted. Basically the present case has been filed for realization of loan amount from the borrower petitioner. As the police has not moved further as neither the charge Patna High Court Cr.Misc. No.45073 of 2011 (3) dt.19-12-2012 5 sheet or final form has been filed. The police will investigate the case and take steps keeping in mind, it is a dispute in between the Bank and borrower relating to none payment of loan amount and at the same time, the court while taking cognizance will also examine as to whether the criminal offence is made out in view of the fact that the present dispute is related to the dispute between the Bank and borrow

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.