Case Facts:
Patna High Court Cr.Misc. No.18476 of 2010 (3) dt.24-07-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.18476 of 2010 ====================================================== 1. Mosmat Kaushalya Devi, W/o Late Nandu Sharma. 2. Sanjay Kumar Sharma, S/o Late Nandu Sharma. 3. Vinay Kumar Sharma, S/o Late Nandu Sharma. 4. Ajay Kumar Sharma, S/o Late Nandu Sharma. All resident of Danapur Gavtal, Gandhi Nagar, P.O.-Digha, P.S.- Danapur, Dist.-Patna. .... .... Petitioners. Versus 1. The State of Bihar 2. Maheshwari Prasad, S/o Late Ram Dayal Rai, R/o Mohalla-Purani Panapur, P.S.-Danapur (Akilpur), Dist.-Patna. .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner/s : Mr. Tuntun Kumar, Adv. For the Opposite Party/s : Mr. Mr. Jitendra Kumar Roy No.1, Adv. Mrs. Usha Kumari Singh, Adv. For the State : Mr. Amrendra Kumar Sinha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3. 24-07-2012 Heard learned counsel for the petitioner as well as learned Opposite Party No.2, learned Additional P.P. As per narration of the complaint the allegation goes to the extent with regard to non-performance of the agreement which was arrived at in between the parties for sale of the land along with house erected thereupon and in token thereof had accepted Rs.55,000/- in lieu of earnest money. The learned lower court after conducting inquiry had taken cognizance under [STATUTE] . vide order dated 25.11.2008 and the same happens to be under challenge. It has been urged on behalf of petitioners / accused that the date of occurrence has been shown as 20-12- 1993 and the case was filed in the year 2008 that means to say Patna High Court Cr.Misc. No.18476 of 2010 (3) dt.24-07-2012 after consuming 15 years. There happens to be no petition for condonation of delay and in likewise manner the learned lower court had not condoned the delay during course of taking of cognizance and so being position, taking into account Section 468 of the Cr.P.C. the order impugned appears to barred by law of limitation. It has further been submitted that taking into account the allegation on its face there is no whisper in the complaint petition that since the time of negotiation petitioner was carrying dishonest as well as fraudulent intention. It has further been submitted that even subsequent events did not disclose the same but even considering for the sake of argument, will not attract any penal action. It has further been submitted that at least prosecution of petitioner number to 2 to 4 is bad because of the fact that at the time of negotiation they all were minor. Admittedly negotiation was done by accused no.1, Most. Kaushalaya Devi and so for any omission or commission committed by Kaushalaya Devi while the remaining three petitioners were miner will not attract any sort of criminal liability upon them. Moreover the nature of deal attracts civil liability that too happens to be subject to adjudication by a court of competent jurisdiction. Criminal liability is always fixed against an individual for the act committed or omitted. Therefore, summoning of petitioner no.2 to 4 is not at all warranted. At the other hand, the learned lawyer for the Patna High Court Cr.Misc. No.18476 of 2010 (3) dt.24-07-2012 Opposite Party No.2 opposed the prayer and submitted that before filing of instant petition, after appearance of the petitioners the case proceeded in accordance with Section 244 of the Cr.P.C. The prayer of the petitioners made under the guise of Section 245 of the Cr.P.C. stood rejected vide order dated 07.06.2010. Therefore, in the aforesaid background now the order of cognizance has got no force at all as after having rejection of petition filed on behalf of petitioners under Section 245 of the Cr.P.C., it has merged under the banner of doctrine of merger. Therefore, now there remains no independent identity of order of cognizance because the subsequent event is to be guided in accordance with the evidence whatever been produced during course of Section 244 of the Cr.P.C. Suppressing the fact of rejection of an order passed under Section 245 of the Cr.P.C. is a matter of concern and on that very score the prayer of petitioners so sought for with regard to quashing of the order of cognizance appears to be non-maintainable. Consequent thereupon, petition is rejected. However, petitioner will be at liberty to challenge the order of rejection of discharge if they so desire. PN/- (Aditya Kumar Trivedi, 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.