Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39738 of 2008 ====================================================== Rajeev Kumar @ Dabloo @ Daboo son of late Yogendra Prasad, resident of Mohalla-Bank Road, Lauria, P.S.-Lauria, District-West Champaran. .... .... Petitioner Versus 1. The State Of Bihar. 2. Raj Kishore Prasad son of late Ramautar Prasad, resident of Village-Khiria Ghat, P.S.-Bairia, District-West Champaran. .... .... Opposite Parties ====================================================== Appearance : For the Petitioner : Mr. Sanjeev Kumar, No. 1, Adv. For the State : Mrs. Renuka Ratnaker, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV ORDER 5 29 -02-2012 The petitioner has filed this application under Section 482 of the Code of Criminal Procedure to quash the order dated 19.01.2007, passed in Complaint Case No. 824 –C of 2005 by the Court of Sri M.K. Tripathi, Judicial Magistrate, Bettiah, West Champaran, summoning the accused-petitioner, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under [STATUTE] . 2. In brief, the case is that opposite party no. 2, Raj Kishore Prasad, filed the Complaint Case No. 824-C of 2005, in the Court of the Chief Judicial Magistrate, Bettiah, West Champaran against the petitioner, alleging therein that he used to run a grocery shop in Bettiah Bazar Samiti. On 05.01.2004, Patna High Court Cr.Misc. No.39738 of 2008 (5) dt.29-02-2012 2/6 the accused-petitioner came at his shop and made proposal to do the business of chilly in partnership. Since the accused- petitioner in course of business had friendly relation, so he believed on the version of accused-petitioner and it was agreed that both will contribute the equal money in purchase of chilly and in the end of the year, after deducting the invested amount in the business of chilly, the benefit will be divided half and half. Accordingly, one truck chilly of Rs. 3, 50,000/- was purchased from the Vijaywada (Andhra Pradesh) and also three trucks chilly were purchased in the month of January, 2004-05. The accused-petitioner used to maintain the account and keep the sale price. On calculation, after deducting the expenses in purchasing the chilly, the profit came to Rs. 1,10,000/- only. When the opposite party no. 2 asked to accused-petitioner to give Rs. 1, 75,000/-, which was contributed as 50% to purchase the chilly and Rs. 25,000/- as benefit, total Rs. 2, 25,000/- in the month of March, 2005, then accused-petitioner showed the rifle and got his signature on stamp paper and also snatched the key of his motorcycle. As such, the accused-petitioner cheated to the tune of Rs. 2, 25,000/-. 3. After filing of the complaint petition by the opposite party no. 2 in the Court of Chief Judicial Magistrate, Patna High Court Cr.Misc. No.39738 of 2008 (5) dt.29-02-2012 3/6 Bettiah, West Champaran, the Court of Sri M.K. Tripathi, Judicial Magistrte, Bettiah, West Champaran, on enquiry under Section 202 of the Code of Criminal Procedure, summoned the accused-petitioner, finding prima facie case under [STATUTE] . 4. Learned counsel appearing on behalf of petitioner submits that, in fact, the chilly was purchased in the name of M/s R.K. Trading Company, the firm of the accused- petitioner, the opposite party no. 2, who used to purchase the chilly for sale on credit, did not paid some dues and, on demand, filed this false complaint case. It is further submitted that even if, the allegation as made in the complaint petition is taken to be true, no criminal offence is made out, rather the dispute appears to be of civil in nature, hence, the impugned order, summoning the accused-petitioner for the offence under [STATUTE] is abuse of the process of the Court. 5. On perusal of the complaint petition, it appears that the opposite party no. 2 has made allegation that in partnership of accused-petitioner, chilly were purchased from outside for business, investing 50% about cost of Rs. 1,75,000/- and on calculation, 50% profit came about Rs. 55,000/-, but on Patna High Court Cr.Misc. No.39738 of 2008 (5) dt.29-02-2012 4/6 demand, the profit and invested money i.e. Rs. 2, 30,000/- were not given, on calculation, by the accused-petitioner to him. 6. [STATUTE] relates to punishment for criminal breach of trust which is defined in [STATUTE] . [STATUTE] relates to the punishment of cheating and dishonestly inducing delivery of property and cheating is defined in [STATUTE] . Sections 405 and 415 of the Indian Penal code are read as under: “405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. “415. Cheating.- Whoever, by deceiving any person, frequently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the Patna High Court Cr.Misc. No.39738 of 2008 (5) dt.29-02-2012 5/6 person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission cause or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. 7. On reading of the aforesaid provision, it is clear that to constitute the offence under Section 406 o

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.