Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.4509 of 2012 ====================================================== 1. Jai Kishun Yadav, S/o Late Deo Nandan Bhagat, resident of Bari Pahari, P.S- Agam Kuan, Dist- Patna 2. Smt. Girja Devi, W/o Sri Jai Kishun Yadav, resident Of Bari Pahari, P.S- Agam Kuan, Dist- Patna .... .... Petitioners Versus 1. The State Of Bihar 2. Nausad Mallik, S/o late Jakir Mallik, resident Of Karbigahia, P.S- Jakkanpur, Dist- Patna, Managing Director, M/S Maik Development Pvt. Limited, 23 Budha Plaza Budha Marg, P.S. Kotwali, Dist- Patna .... .... Opposite Parties ====================================================== Appearance : For the Petitioners : Mr. Rajesh Mohan, Advocate & Mr. Tilak Sao, Advocate For the State : Mr A.L. Pandit, A.P.P.. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA) 3 02-02-2012 Heard learned counsel for the petitioners and learned counsel appearing on behalf of the State. The petitioners have approached this Court by filing the present petition under Section 482 of the Code of Criminal Procedure seeking quashing of the order dated 4.9.2010 passed in Complaint Case No. 1119( C) of 2010 by the learned Judicial Magistrate, Ist Class, Patna, whereby cognizance under [STATUTE] has been taken and summons have been issued against the accused persons for their appearance. Learned counsel for the petitioners submits that the order taking cognizance is barred by limitation and if there is some dispute regarding non-execution of the sale deed by the accused persons on the basis of an agreement to sale, then for that the complainant ought to have filed a civil suit, but the criminal prosecution is not maintainable. It is also contended Patna High Court Cr.Misc. No.4509 of 2012 (3) dt.02-02-2012 2 that though petitioner no.2 happens to be the wife of petitioner no.1 but she is not directly involved with respect to negotiation or agreement for transfer of the lands in question. Learned counsel appearing on behalf of the State has opposed the prayer and has submitted that on the basis of materials available on record a prima facie case under [STATUTE] is made out. After having heard the parties and on perusal of the materials available on record, this Court finds that the petitioners are alleged to have entered into a negotiation for transfer of 3 kathas of lands to the complainant. Pursuant to the aforesaid negotiation, an agreement was also signed on 16.1.2007. The petitioners are alleged to have taken altogether Rs. 2,70,000/- from the complainant with a promise to transfer the lands in question and thereafter despite legal notice and several reminders they refused either to return the money or execute a sale deed. Consequently, the aforesaid petition of complaint was filed by opposite party no.2. The complainant was examined on S.A. and two witnesses were produced on behalf of the complainant during the course of enquiry. On the basis of materials available on record, the learned Magistrate came to a finding that a prima facie case under [STATUTE] is made out. Under the mandate of Section 190 of the Code of Criminal Procedure, the court is required to take cognizance of an offence. The allegations against individual accused are not required to be discussed at that stage. So far question of limitation is concerned, the cause Patna High Court Cr.Misc. No.4509 of 2012 (3) dt.02-02-2012 3 of action arose on the last date of refusal by the accused persons either to return the money or to execute a sale deed. The petition of complaint was filed on 24.4.2010 and cognizance has been taken on 4.9.2010.Therefore, the plea raised on behalf of the petitioners that the order taking cognizance is barred by limitation appears to be misconceived. In view of the provision under [STATUTE] defining criminal breach of trust and in view of the fact that money was entrusted to the petitioners by the complainant for the purpose of transfer of the lands and the same having been dishonestly misappropriated by refusing either to return the money or to execute a sale deed, prima facie a case under [STATUTE] is made out. No other legal submission has been made on behalf of the petitioners. This Court does not find any legal infirmity in the order impugned. The application has to fail. Consequently, this petition stands dismissed. Kanth/- (Birendra Prasad Verma, J.)

Applicable IPC Section: 405

Statute Text:
Section 405 of the Indian Penal Code. None. 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".