Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.6293 of 2011 ====================================================== 1. Sunil Ranka S/o Sri Ratanlal Ranka, C-48, Okhla Industrial Area, Phase-II, New Delhi 2. Vodafone Essar Spacetal Limited , a company incorporated under the provisions of the Companies Act,1956 having its registered office at C- 48, Okhla Industrial Area, Phase-II, New Delhi and Local Office at 4th Floor, Maharaja Kameshwar Complex, Frazer Road, Patna through its Authorised Signatory Mr. Ranjan Kumar Son of Sri V.N.Singh, resident of Flat No.205, Akota Apartment, Doranda, Ranchi, Jharkhand .... .... Petitioner/s Versus 1. The State Of Bihar 2. Shankar Kumar Mishra, Son of Indra Narayan Mishra, resident of Village- Pachahi, P.S. Madhepur, District-Madhubani at present C/o Arun Kumar Jha, Mohalla- Hanuman Nagar, Punaichak, Police Station- Shastri Nagar, District-Patna .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER ---------------------- 7 03-05-2012 Heard Sri Uma Kant Shukla, learned counsel, who was assisted by Sri Ratnakar Pandey, learned counsel for the petitioners, Sri Anil Kumar Singh, learned Addl. Public Prosecutor and Sri Kripa Nand Jha, learned counsel, who has appeared on behalf of complainant/Opp.Party no.2. The petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure , have prayed for quashing of entire criminal prosecution in Complaint Case no.1974( C) of 2008 as well as order of cognizance dated 13.02.2009 passed by Smt. Pratibha , learned Judicial Magistrate, 1st Class, Patna in the said Patna High Court Cr.Misc. No.6293 of 2011 (7) dt.03-05-2012 2 / 5 2 complaint case. Learned Magistrate by the impugned order has taken cognizance of offence under [STATUTE] . Learned counsel for the petitioners, while making prayer for quashing of criminal prosecution in the aforesaid complaint case, has primarily argued that after going through the entire complaint petition, no criminal offence is made out. It was submitted that it was a case of breach of an agreement, which comes under the purview of civil jurisdiction. He has further argued that petitioner no.1, who was earlier Director of petitioner no.2 i.e. Vodafone Essar Spacetal Limited Company incorporated under the provisions of the Companies Act, 1956, whereas petitioner no.1 had already tendered resignation from the Company and his resignation was finally accepted on 18.12.2007. In support of his plea of resignation, the petitioner has brought on record Annexures-A series i.e. Form 32. He specifically asserts that resignation of petitioner no.1 as Director of the Company was accepted on 18.12.2007, whereas in the complaint petition, period of offence commences from 24.01.2008 till the date of filing of complaint petition. In support of his argument, learned counsel for the petitioners submits that once the petitioner no.1 had tendered his Patna High Court Cr.Misc. No.6293 of 2011 (7) dt.03-05-2012 3 / 5 3 resignation, which was accepted, at subsequent stage the prosecution should not have been initiated against the petitioner. Learned counsel for the petitioners has relied on a Judgment of the Hon’ble Supreme Court passed in Cr. Appeal No.2033 of 2011(Mrs. Anita Malhotra Vs. Apparel Export Promotion Council & Anr.). He further submits that since it was a case of breach of agreement, the Court was not authorized to take cognizance. In support of his argument, he has also relied on Judgment of Hon’ble Apex Court reported in AIR 1999 SC 1480 (Nageshwar Prasad Singh Vs. Narayan Singh & Ors.). He submits that in the said case, the Apex Court, while setting aside the criminal prosecution, had also imposed exemplary cost against the complainant. On the aforesaid ground, he has prayed for quashing the order of cognizance as well as entire proceeding in Complaint Case No. 1974(C) of 2008. Learned counsel for the complainant/Opp.Party no.2 submits that in the complaint petition itself, there is specific assertion that agreement was entered in between the parties for installing B.T.S. Tower on the land of the complainant and, thereafter, permission was also obtained from the Circle Officer. The complainant with ill-motive decided to set up and shifted the B.T.S. Tower to some other place. He submits that Patna High Court Cr.Misc. No.6293 of 2011 (7) dt.03-05-2012 4 / 5 4 after the agreement, as per instance of the petitioners, the complainant had removed about more than 50 trees from the land in question and, as such, he has suffered loss of more than Rs.5 Lacs. Learned counsel for Opp.Party no.2 has tried to impress upon the Court that some of the averments made in the complaint petition indicate commission of offence. After hearing the parties and considering the materials available on record, the Court is of the opinion that it was simply a case of breach of agreement. On perusal of the complaint petition, the Court is of the opinion that no offence is made out. The petitioners were entitled to avail other remedy instead of filing a complaint petition. Similarly, learned Magistrate in a mechanical manner has passed order of cognizance, which requires interference. After going through the impugned order, the Court is satisfied that allowing such prosecution will amount to allowing abuse of process of the court and, as such, with a view to prevent abuse of the process of the Court, it is desirable to interfere with order of cognizance and accordingly order of cognizance dated 13.02.2009 passed by Smt. Pratibha , Judicial Magistrate, 1st Class, Patna and entire proceeding in Complaint Case No. 1974 ( C) of 2008 is Patna High Court Cr.Misc. No.6293 of 2011 (7) dt.03-05-2012 5 / 5 5 hereby set aside and the petition stands allowed. The quashing of proceeding in complaint petition may not put any hindrance to the c

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.