Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.8501 of 2010 ====================================================== M/S Parag Milk Foods Pvt. Ltd. Flat No.1, Plot No.19, Nav Rajasthan Society, Behind Ratna Memorial Hospital, Senapati Bapat Road, Shivaji Nagar, Pune, Disrtrict-Pune through its Managing Director, Pritam Shah. .... .... Petitioner/s Versus 1. State Of Bihar 2. Bimal Bohra, Managing Director, J.B. Warehousing & Trading Ltd,. 17 Ashoka Place, PS-Gandhi Maidan, District-Patna. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. S.D. Sanjay, Adv. Mr. Akash Chaturvedi, Adv. For the State : Mr. Brajendra Nath Pandey, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 4 04-07-2012 Petitioner through its Managing Director has challenged order dated 01.02.2010 passed by Smt. Kalpana Srivastava, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 3149(C)/2009 whereby and whereunder petitioner along with others has been summoned to face trial for an offence punishable under [STATUTE] . 2. O.P. No.2 (not appeared) filed complaint petition putting an allegation that he was appointed as Consignee Agent for the whole Jharkhand for which negotiation was finalized at its head office located at Ashoka Place, Exhibition Road, Patna and for that as per direction had given bank guarantee of Rs.5 Lacs as well as also deposited Rs.5 lacs as security money and in Patna High Court Cr.Misc. No.8501 of 2010 (4) dt.04-07-2012 2 pursuance thereof Memorandum Of Understanding (MOU) was acknowledged in the between the parties. 3. Later on, one Sanjay Agarwal, General Manager of petitioner against whom O.P. No.2 had alleged to be jealous & hostile towards him, and in the aforesaid background he had appointed another Super Stockiest for the aforesaid area and began to deal with business through the aforesaid Super Stockiest putting the O.P. No.2 under wrongful loss. Not only this, they have not responded over Advocate notice served by O.P. No.2 as well as failed to repay the amount which he had kept as security deposit. O.P. No.2 has not been exonerated from the liability of bank guarantee. 4. Contention on behalf of the petitioner is that the complaint petition filed on behalf of O.P. No.2 is not at all maintainable. Further submitted that no deal was finalized at Patna rather only to harass the petitioner the same has been incorporated. Further submitted that whatever documents were prepared including (MOU) Memorandum Of Understanding amongst the parties, the same was at Kolkata. Petitioner was appointed as Consignee Agent for the Jharkhand State. Therefore, grievance if any, was redressable either within the jurisdiction of Jharkhand or West Bengal. Therefore, the present litigation lacks territorial Patna High Court Cr.Misc. No.8501 of 2010 (4) dt.04-07-2012 3 jurisdiction in the background of which the Complaint Petition No. 3149(C)/2009 was not at all entertainable/maintainable at Patna. It has further been submitted that as per terms of MOU, any breach of contract was to be treated as civil liability and for that only civil suit was permissible. Therefore, it happens to be out and out a civil dispute without attracting any of the sections of Penal Code wherein petitioner has been summoned. Not only this, It has further been submitted that neither in the complaint petition nor during S.A. any sort of allegation has been levelled against the petitioner rather O.P. No.2 himself had stated on Court’s question at paragraph-9 because of the fact that MOU was signed by Pritam Sah therefore, he along with Company has been arrayed as an accused. The main culprit has been Sanjay Agarwal. 5. In the aforesaid background the summoning of petitioner is unwarranted, uncalled for as well as without any basis and foundation. 6. On the other hand, learned APP opposed the prayer and submitted that for the present purpose only a prima facie case has to be dealt with which the Court had traced out during course of enquiry under Section 202 of the Cr.P.C. Hence, the order passed by the learned lower court did not attract any interference. 7. In spite of having personal service, O.P. No.2 did not Patna High Court Cr.Misc. No.8501 of 2010 (4) dt.04-07-2012 4 choose to appear. 8. In a decision reported in 2010 Cr. Law Journal 3848 at paragraph-5 the Hon’ble Apex Court has dealt with the situation when there has been objection over territorial jurisdiction of the Court concerned and further how it should be dealt with. The Hon’ble Apex Court has held:- “In our opinion, in such cases where the accused or any other person raises an objection that the Trial Court has no jurisdiction in the matter, the said person should file an application before the Trial Court making this averment and giving the relevant facts. Whether a Court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, in stead of rushing to the higher Court against the summoning order, the concerned person should approach the Trial Court with a suitable application for this purpose and the Trial Court should after hearing both sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with case.” 9. Therefore, the prayer in hand as made by the petitioner relating to jurisdiction of the Court in entertaining the complaint petition is to be decided by the court concerned itself after having a petition filed on behalf of the petitioner raising such plea and the court will decide the issue taking into account the contents of complaint petition along with evidence, if any, so required in deciding the issue as preliminary issue. 10. With the aforesaid observation, the instant Patna High Court Cr.Misc. No.8501 of 2010 (4) dt.04-07-2012 5 petition is disposed of. PATNA HIGH COURT The 4th of July

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.