Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17472 of 2010 ====================================================== Vijay Kumar Srivastava son of Late Jagdish Lall R/O Mohalla-Shankar Bhawan, Bari Bazar se West Civil Lines, P.S.Buxar (T) Distt-Buxar. .... .... Petitioner/s Versus 1. State Of Bihar 2. Jitendra Shukla S/O Late Jagdish Shukla, R/O Mohalla-Maharana Pratap Nagar, Ara, P.S. Ara, Nawadah, Distt-Bhojpur at Ara. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Jagdish Prasad, Adv. For the Opposite Party/s : Mr. S.M. Rahman, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 5 08-08-2012 Petitioner has prayed for quashing of order dated 02.03.2009 whereby and whereunder the learned Chief Judicial Magistrate, Bhojpur at Ara took cognizance for an offence punishable under [STATUTE] as well as 138 of N.I. Act on the basis of the charge-sheet submitted by I.O. in connection with Nawada (Bhojpur) P.S. Case No. 54/08 and summoned the petitioner along with others. 2. O.P. No.2/complainant had filed complaint petition against the petitioner and others disclosing therein that on account of previous intimacy accused no.1/petitioner had offered to sell land bearing P.S. Plot No.9091 appertaining to Khata No. 366, Area 4 Kattha 15 Dhurs and having the negotiation finalized , he had paid Rs. 2,40,000/- as an earnest money and for that he had executed Mahadanama in fovour of O.P. No.2/complainant. It was Patna High Court Cr.Misc. No.17472 of 2010 (5) dt.08-08-2012 2 further agreed that the registration of the document will be effected within a month. Even after expiry of the aforesaid tenure when the accused no.1/petitioner failed to execute the sale deed, then the complainant made repeated request but on one pretext or other accused no.1/petitioner deferred the matter and lastly on insistence to return the amount, the accused no.1/petitioner had issued two cheques bearing nos. 0027136, 1127135 each for Rs. 1, 25,000/-. When the aforesaid cheques were tendered in bank, both were dishonoured. Thereafter, again complainant approached the accused no.1/petitioner but could not succeed to meet with him and on account thereof had served two advocate notices dated 15.07.2006 as well as 28.11.2007 but got no fruitful result. 3. Contention on behalf of the petitioner is that complainant had filed instant case out of malice and grudge. Further submitted that the story whatever been propounded in the complaint petition is false and frivolous. Then submitted that actually, petitioner as well as O.P. No.2 (complainant) were both jointly engaged in brokery of the land and for that purpose blank cheques were handed over to the complainant by the petitioner. As the petitioner, in due course of time withdrew himself from the business and gone to Mumbai in search of service, subsequently, with dishonest and malafide intention O.P. No.2/Complainant Patna High Court Cr.Misc. No.17472 of 2010 (5) dt.08-08-2012 3 converted the blank cheque into promissory note and with dishonest intention now he is advancing a false and frivolous claim. Further submitted that even not a chit of paper was place before the I.O. in support of the payment of Rs.2,40,000/- by the O.P. No.2/Complainant in favour of petitioner. Therefore, there was no occasion for the petitioner to return back the amount through cheque as pleaded by O.P. No.2/Complainat. 4. It has further been submitted that it happens to be out and out a civil liability and for that no criminal action is permissible. 5. On the other hand, learned APP opposed the prayer and submitted that whatever argument has been advanced on behalf of the petitioner that happens to be matter of trial. So far present stage is concerned only prima facie, case has to be taken into consideration. 6. In a decision 2012 Criminal Law Journal page 1551 (Lee Kun Hee & Ors. v. State of U.P. & Ors.) at para 26 it has been held: “We have given our thoughtful consideration to the last contention advanced at the hands of the learned counsel for the appellants. We are of the considered view, that in offence of the nature contemplated under the summoning order, there can be civil liability coupled with criminal culpability. What a party has been deprived of by an act of cheating, can be claimed through a civil action. The same deprivation based on denial by way of deception, emerging from an act of cheating, would also attract criminal liability. In the course of criminal prosecution, a complaint cannot Patna High Court Cr.Misc. No.17472 of 2010 (5) dt.08-08-2012 4 seek a reciprocal relief, for the actions of the accused. As in the instant case, the monetary consideration under the bill of exchange dated 1.2.2001, cannot be claimed in the criminal proceedings, for that relief the remedy would be only through a civil suit. It is therefore not possible for us to accept, that since a civil claim has been raised by the complainant-JCE Consultancy, based on the alleged breach of the agreement dated 1.12.2001, it can be prevented from initiating proceedings for penal consequences for the alleged offences committed by the accused under the Indian Penal Code. It would not be appropriate for us, to delve into the culpability of the appellants at the present juncture, on the basis of the factual position projected by the rival parties before us. The culpability (if at all) would emerge only after evidence is adduced by the rival parties before the trial court. The only conclusion that needs to be drawn, at the present juncture is, that even on the basis of the last submission canvassed on behalf of the appellants, it is not possible to quash the summoning order at this stage. In the aforesaid view of the matter, it is left open to the appellants to raise their objections, if they are so advised, before the trial court. The trial court

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.