Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16432 of 2003 =========================================================== Against the order dated 22.2.2002 passed by Sri Prem Kumar Prasad, Judicial Magistrate, First Class, Bhagalpur, in Complaint Case No.430 of 2001. =========================================================== 1. Smt. Lakshmi Devi Singhania, wife of Gopi Kumar Singhania. 2. Gopi Kumar Singhania, son of Sri Both residents of “Goenka House”, 16 Walkeshwar Road, Mumbai-400006. .... .... Petitioners. Versus 1. The State of Bihar. 2. M/s. Indian Handloom through G.K. Agrawal Proprietor, D.P. Colony, R P Road, Bhagalpur. .... .... Opposite Parties. =========================================================== Appearance : For the Petitioners : M/s. Anil Kumar Sinha and Mritunjay Kumar, Advocates. For the State : Mr. Dashrath Mehta, A.P.P. For the O.P. No.2 : Mr. Gopal Prasad Roy, Advocate. =========================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV JUDGMENT Date: 20 -03-2012 --------------------- The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 22.2.2002 passed in Complaint Case No.430 of 2001 by Sri Prem Kumar Prasad, Judicial Magistrate, First Class, Bhagalpur, summoning the accused- petitioners, on enquiry under [STATUTE] . A prayer has also been made to quash the entire criminal proceedings, arising out of the aforesaid complaint case, against the petitioners. 2. In brief, the case is that G.K. Agrawal, Proprietor of M/s Patna High Court Cr.Misc. No.16432 of 2003 dt.20-03-2012 2 / 6 2 Indian Handloom, filed the Complaint Case No.430 of 2001 in the court of Chief Judicial Magistrate, Bhagalpur, against the three accused, named in the complaint petition, including the petitioners alleging therein that he deals the Silk Fabrics Business and in course of business transaction he came in acquaintance with the accused persons named in the complaint petition. In the month of October, 1995, the accused persons arrived at Bhagalpur and allured the opposite party no.2 to invest handsome amount in the business. In that course, it was agreed upon that the payment would be made through cheque in favour of accused-petitioner no.1, Smt. Lakshmi Devi Singhania and the accused-petitioner no.2, Gopi Kumar Singhania, would grant the receipt and it would be incorporated as loan where against minimum 19.2% per annum interest would be paid in lieu of minimum profit till the project culminates. Thereafter, the opposite party no.2 got prepared the draft of Rs.5,00,000/-, drawn on Union Bank of India, Varansi, in favour of accused-petitioner no.1 and handed over the same to her, on which her husband, accused- petitioner no.2, issued a receipt of receiving the draft on 13.10.1995. It is also alleged that the accused no.3, Shri Motilal Agrawal, who was broker in this line, also convinced the opposite party no.2 detailing about the financial status of the accused-petitioners. The opposite party no.2 was convinced by the subsequent attitude of the accused- Patna High Court Cr.Misc. No.16432 of 2003 dt.20-03-2012 3 / 6 3 petitioners as he was paid the interest upto July, 2000. When the opposite party no.2 heard about the earning a lot from his money by the accused-petitioners and also that the accused no.3 has also realized handsome amount from them as a broker, the opposite party no.2 made request to the accused-petitioners to pay profit or to raise the interest but they did not pay any heed. Thereafter, the opposite party no.2 made request to the accused-petitioners to repay the amount of investment but they did not care to repay the same. In the meantime, the opposite party no.2 reminded the accused about their commitment to repay the amount with interest by the month of July, 2000 as the marriage of his daughter had been scheduled to be held for November, 2000, but due to non repayment of amount by the accused-petitioners and due to paucity of the fund, the opposite party no.2 postponed the marriage of his daughter till January, 2001. Thereafter, the accused- petitioners were requested to pay off the whole of the last acknowledged sum of Rs.5,48,000/- inclusive of interest as on 31.3.2000 plus further accrued interest as may work out till the date of payment through a legal notice dated 8.11.2000 but they did not pay any heed. As such, the accused, named in the complaint petition, including the petitioners cheated the opposite party no.2 putting him to loss of more than Rupees six lacs. 3. After filing of the Complaint Case No.430 of 2001 by Patna High Court Cr.Misc. No.16432 of 2003 dt.20-03-2012 4 / 6 4 the opposite party no.2, the court of Sri Prem Kumar Prasad, Judicial Magistrate, First Class, Bhagalpur, on inquiry under Section 202 of the Code of Criminal Procedure, summoned only the accused- petitioners, finding prima facie case under [STATUTE] through the impugned order dated 22.2.2002, excluding the accused, Motilal Agrawal, due to lack of evidence against him. 4. Learned counsel appearing on behalf of the petitioners made submission that from perusal of the complaint petition, it would appear that the opposite party no.2 had given the loan of Rs.5,00,000/- at the rate of 19.2% per annum interest to the petitioners and the petitioners stopped to pay the interest after July, 2000. If the allegation, as made in the complaint petition, is taken to be true, the liability appears to be of civil in nature and summoning the petitioners for the offence under [STATUTE] through the impugned order would amount to an abuse of the process of the court. 5. On the other hand, leaned counsel appearing on behalf of the opposite party no.2 made submission that the learned Magistrate on perusal of the complaint pe

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.