Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.5674 of 2004 =========================================================== Against the order dated 10.9.2003 passed in Complaint Case No.1536(C) of 2003 by the court of Sri B. Ram, Judicial Magistrate, Patna. =========================================================== 1. Bhushan Prasad @ Shashi Bhushan Kumar, son of Laxmi Ram @ Laxmi Chand, Proprietor of M/s. Sasta Khadi Bhandar. 2. Smt. Mamta Devi, wife of Sri Bhushan Prasad. Both resident of Main Bazar Nawadah, P.S. Nawada, District-Nawada. .... .... Petitioners. Versus 1. The State of Bihar. 2. Sanjay Kumar Agrawal, son of Sri Bijay Kumar Agrawal, Bijay Textiles, Patliputra Dharamshala Narain Sabjibagh, P.S. Pirbahore, Patna. .... .... Opposite Parties. =========================================================== Appearance : For the Petitioners : Mr. Gauri Shankar Prasad, Advocate. For the O.P. No.2 : Mrs. Renuka Ratnakar, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV JUDGMENT Date: 9-04-2012 ------------------ The petitioners have approached this Court, under Section 482 of the Code of Criminal Procedure, to quash the order dated 10.9.2003 passed in Complaint Case No.1536(C) of 2003 by the court of Sri B. Ram, Judicial Magistrate, Patna, summoning the petitioners, on enquiry under [STATUTE] . 2. The brief facts, leading to this application, are that the opposite no.2, Sanjay Kumar Agrawal, filed the Complaint Case No.1536(C) of 2003 against the petitioners and their firm M/s. Sasta Patna High Court Cr.Misc. No.5674 of 2004 dt.09-04-2012 2 / 5 2 Khadi Bhandar, alleging therein that he is the son of Mr. Bijay Kumar Agrawal, the proprietor of the firm M/s. Bijay Textiles, situated at Patliputra Dharamshala Market, Sabjibagh, P.S. Pirbahore, District-Patna and is working in the said firm as a Manager. The petitioners used to do the business of retailorship of the clothes materials in the name and style of M/s. Sasta Khadi Bhandar at Main Market in the town of Nawada. The petitioners used to purchase the clothes from the firm M/s. Bijay Textiles for their shops on oral agreement to pay the amount of purchased clothes within 30 days, otherwise the interest at the rate of 20% per annum would be payable. In starting the petitioners made payment timely but, later on, started delay in payment as till 29.11.2001, while clothes were purchased by the petitioners worth of Rs.11,835/- but payment was made only of Rs.7,772/-. Despite dues, on the request of the petitioners, further clothes were given to them and on repeated demands, part payments were also made and, ultimately, Rs.15,797/- became due against the petitioners. The opposite party no.2 went to Nawada and met to the petitioners in the first week of March, 2003 for the payment of the said dues but the petitioners did not give satisfactory reply. Accordingly, legal notice was sent to the petitioners on 17.5.2003 through the pleader by the opposite party no.2 but in spite of that the petitioners did not pay Patna High Court Cr.Misc. No.5674 of 2004 dt.09-04-2012 3 / 5 3 any heed. As such, the petitioners with a dishonest intention to grab the money of the opposite party no.2, cheated the opposite party no.2 to the tune of Rs.15,797/-. 3. After filing of the Complaint Case No.1536(C) of 2003 by the opposite party no.2, on enquiry under Section 202 of the Code of Criminal Procedure, the court of Sri B. Ram, Judicial Magistrate, Patna, summoned the petitioners, finding prima facie case under [STATUTE] through the impugned order dated 10.9.2003. 4. Learned counsel appearing on behalf of the petitioners made submission that from perusal of the complaint petition, the dispute appears to be of non payment of the dues in course of business transaction by the petitioners to the opposite party no.2, which is civil in nature. As such, summoning the petitioners through the impugned order dated 10.9.2003 under [STATUTE] would amount to abuse of the process of the court. 5. From perusal of the impugned order, it appears that after filing of the Complaint Case No.1536(C) of 2003 by the opposite party no.2 against the petitioners and their firm M/s. Sasta Khadi Bhandar, on enquiry under Section 202 of the Code of Criminal Procedure, the court of Sri B. Ram, Judicial Magistrate, Patna High Court Cr.Misc. No.5674 of 2004 dt.09-04-2012 4 / 5 4 Patna, summoned the petitioners, finding prima facie case under [STATUTE] through the impugned order dated 10.9.2003. [STATUTE] relates to the punishment for criminal breach of trust and the criminal breach of trust is defined under [STATUTE] . The provision of [STATUTE] is 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”.” 6. On bare perusal of the aforesaid provision of [STATUTE] , it is clear that to constitute the offence under [STATUTE] , there should be entrustment of the property to a person and the property should be dishonestly misappropriated or converted to his own use by that person. 7. If the averment made in the complaint petition is taken at its face value and is accepted to be true in its entirety, the ingredients for the

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.