IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.149 of 2009 BIPIN BIHARI, son of Chandeshwar Singh, resident of Kapashiawan, P.S. Hilsa, District Nalanda ……………….. Petitioner Versus 1. THE STATE OF BIHAR 2. Sujeet Kumar, son of Awadhesh Prasad Singh, resident of Kapashiawan, P.S. Hilsa, District Nalanda …………….. Opposite parties ----------- 4. 29.03.2010 Heard leaned Counsel for the petitioner, learned Counsel for the State and the learned Counsel for the Opposite party no. 2. The challenge in this application is to the order of cognizance dated 11.9.2008 in Complaint case No. 376 ( C ) of 2008 pending before the Judicial Magistrate, Hilsa, under Sections 323, 406, 504 of the Penal Code and Section 138 of the N.I.Act. Learned Counsel for the opposite party no. 2 very fairly acknowledges that the allegations in the complaint are completely lacking with regard to fulfillment of the statutory preconditions under Section 138 of the Negotiable Instrument Act so as to uphold applicability thereof to the allegations. In that view of the matter there is no occasion for this Court to dwell upon facts of the case in so far as the order of cognizance under Section 138 N.I.Act is concerned. This Court holds that the order dated 11.9.2008 is therefore bad in so far as the proceeding under Section 138 N.I.Act is concerned, in absence of necessary pleadings of details with regard to the statutory notice. 2 This application is therefore allowed to that extent only and the proceedings against the petitioner under Section 138 N.I.Act are accordingly quashed. The allegations are that Opposite party no. 2 wished to purchase an old Hero Honda motorcycle of the petitioner and gave him a sum of Rs. Twenty thousand in advance before witnesses for preparation of sale and transfer papers. Three days latter when opposite party no. 2 called upon the petitioner for delivery of the vehicle and papers, the petitioner informed him that the vehicle in fact belonged to his brother who did not wish to sell the vehicle. The opposite party no. 2 demanded back Rs. Twenty Thousand which was evaded. On a subsequent date the petitioner allegedly gave a cheque which has been dishonoured for reason of insufficiency of funds. On 25.5.2008 when the opposite party no. 2 again demanded the money he was abused and threatened, thus committing offence under the Penal Code. Learned Counsel for the petitioner submitted that the allegations read as it is at best reflect a civil dispute between the parties with regard to non delivery of the vehicle and its paper after receiving the advance money. The vehicle belonged to the brother of the petitioner who refused delivery and there was no evidence of Rs. Twenty Thousand having actually been paid. The matter essentially related to sale and purchase and had a civil flavour and therefore there was no justification for continuance of the criminal proceeding. The allegations are of the petitioner representing himself to be the owner, accepting part payment of Rs. Twenty Thousand 3 and then renegading and thus failing to fulfill his obligation on the pretext that the vehicle belonged to his brother. If the petitioner was not owner of the vehicle there was no occasion for him to accept the advance of Rs. Twenty Thousand for the purpose. Once the petitioner accepted the balance payment, failed to deliver the vehicle and issued a cheque aware of the fact that the funds in his account were insufficient, to this Court rest of the matters became his defence to be seen in the trial. A transaction can simultaneously have a civil flavour as also a criminal flavour. If the petitioner contends that a civil dispute has occurred, what remains for him to answer is his conduct in accepting part payment for a vehicle which did not belong to him on misrepresentation that he was the owner and retaining money paid in advance for delivery of the motorcycle and its paper but failed to deliver the same. Section 406 IPC deals with punishment for criminal breach of trust. The offence is described in Section 405 IPC. A person entrusted with property dishonestly misappropriates or converts to his own use that property in violation of any direction of law for discharge of such trust commits criminal breach of trust. Once the petitioner accepted the advance payment for the motorcycle, till he did not deliver the motorcycle he retained the money in trust for a particular reason and purpose only. If that reason and purpose became impossible of fulfillment, the money being retained in trust, it was his duty to return it to opposite party no. 2. The wrongful retaining of this amount makes it a matter for trial on the allegations. 4 This Court therefore finds no reason to interfere with the order of cognizance warranting exercise of jurisdiction under Section 482 Cr.P.C. This application is dismissed except to the extent indicated above. Snkumar/- (Navin Sinha,J.)