IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.9817 OF 2008 AJAY PRATAP SINGH, SON OF LATE SHANKAT HARAN SINGH, RESIDENT OF SHRI KRISHNAPURI, POLICE STATION SHRI KRISHNAPURI, PATNA VERSUS 1. THE STATE OF BIHAR 2. LALIT KUMAR KATARUKA, SON OF LATE KASHI PRASAD KATARUKA, PARTNER OF M/S NATIONAL AGRO CHEMICALS, RESIDENT OF 4, RIDING PATH, SHEIKHPURA, POLICE STATION SHASTRI NAGAR, DISTRICT PATNA …………………………………………………………….OPPOSITE PARTIES ********* FOR THE PETITIONER :- MR. ASHWANI KR. SINGH, SR. ADV. MR. RAKESH KUMAR, ADVOCATE MR. ANURAG SAURAV, ADVOCATE MR. DEVENDRA NR. SINGH, ADVOCATE FOR THE S T A T E :- MS. INDU BALA PANDEY, A.P.P. FOR O.P. NO. 2 :- MR. C. M. SAXENA, ADVOCATE **************** 2 09/03/2010 Heard learned Counsel for the petitioner, the complainant/Opposite Party No. 2 and the A.P.P. appearing on behalf of the State. The petitioner was the Executive Director of BISCOMAUN at the relevant time when the occurrence is said to have taken place. In the complaint petition, it is specifically alleged that the BISCOMAUN had asked the complainant/Opposite Party No. 2 to supply certain products on 30.01.1988 and 03.02.1988. It is further stated in the complaint petition that part payment was made with respect to the products supplied which is set out at paragraph 13 of the complaint petition. Apparently, the complainant had 2 received Rs. 5,44,186.56 against the total due of Rs. 11,52,572.41. It has further been stated that the Cane Commissioner, Government of Bihar made full payment to the BISCOMAUN for the supply of the goods. However, BISCOMAUN did not in its turn make full payment to the complainant. Counsel for the petitioner refers to an order of this Court passed in CWJC No. 8091 of 1990 wherein the complainant had moved this Court making a prayer that the Court may pass an order asking the Cane Commissioner to make payment of the pesticides supplied by the complainant. The Writ Court has passed an order rejecting the writ application on the ground that the disputes relate to breach of contract and the Writ Court cannot pass any order for payment of the amount due to any party. It is also submitted that the petitioner is not directly concerned with the said payments which were to be made and it was for the BISCOMAUN or the Managing Director of the BISCOMAUN to take action in this regard. It is further submitted that the period for which payment was to be made is admittedly of the year 1988 whereas the present complaint petition has been filed on 17.04.2007 and as such is barred by Section 468 of the Code of Criminal Procedure. 3 Learned Counsel appearing on behalf of the complainant submits it is an admitted position that the supply was made by the petitioner. It is also submitted that certain amount was paid to the complainant and there was certain dues that were to be paid by the BISCOMAUN to the complainant which has not been paid, although the payments which were made by the Government of Bihar to BISCOMAUN, and as such non-payment of the dues to the complainant amounts to cheating. It is also submitted that the Court below ought to have taken cognizance under Section 409 of the Indian Penal Code against the petitioners and others who are the Government Servants, although it appears that this petitioner has resigned in the year 2003 from the BISCOMAUN. At this juncture, another question which would arise in the peculiar facts of this case is whether the complainant can file a case claiming that there has been a breach of contract/agreement between the parties, after a lapse of about 20 years? The answer is no! For the reason that under ordinary circumstances, the complainant could have claimed his dues through a money suit, the period of limitation for filing a suit for recovery of money arising out of contractual agreement is three years as provided under Section 113 of the 4 Indian Limitation Act. The complainant has failed to take recourse to the procedure laid down under the law. By filing this criminal case, an attempt is being made to make out a case of cheating and criminal breach of trust to create a right which would otherwise not be available. However, this Court is duty bound to examine whether the facts of this case to find out whether an offence under Section 406 & 420 of the Indian Penal Code is made out against the petitioner. For a case to come us 406 & 420 of the Indian Penal Code, it ought to be shown to the Court that there was an intention on behalf of the persons concerned to cheat the another person. Obviously, in this case, it cannot be held that the petitioner was liable under Section 406 & 420 of the Indian Penal Code to be punished for the offence of cheating. To constitute an offence under Section 415 of the Indian Penal Code, there must be an element of deception and fraud involved in the entire transaction. As far as this particular transaction is concerned, there is no question of deception as payment were made to the complainant from time to time and it cannot by any stretch of imagination held that the complainant was induced in any manner to part with his property. Similarly, the Court has erred in holding that the petitioner is liable to be punished under Section 406 5 of the Indian Penal Code. Section 405 of the Indian Penal Code defines criminal breach of trust. It envisages that there should be an entrustment of property and the person so entrusted with the property dishonestly misappropriates that property or converts the property in question to his own use. Again, the Court finds that on facts, it would appear that there is no entrustment of any property by the complainant and as such it cannot be said that there was any criminal breach of trust. As such, this Court finds that the offences under Sections 406 & 420 of the Indian Penal Code are not made out against this petitioner. There is another aspect of the entire matter. Admittedly, supply was made in the year 1988. The claim for making payment for the supply of pesticides by the complainant would date back to 1988 or at the most 1989. The complainant, as already stated above, would have had a remedy if he had filed a suit within three years. By virtue of this fact, this Court can hold that the period by which payment, if found proper, ought to have been made, should have been in the year 1991. Now, taking into account the provisions of Section 468 of the Code of Criminal Procedure, the period of limitation would be three years if the offences is punished for an imprisonment for a term exceeding one 6 year but not exceeding three years as provided by Sub- section (2) (c) of Section 468 of the Code of Criminal Procedure. 468. Bar to taking cognizance after lapse of the period of limitation.- (1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be - (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. In this case, Section 406 of the Indian Penal Code is punishable for a period of three years. The commencement of the limitation period as per Section 469 of the Code of Criminal Procedure is to be considered from the date of occurrence. Therefore, even if the limitation in such matter is considered, it would have been barred by virtue of Sections 468 & 469 of the Code of Criminal Procedure. 7 After considering the aforesaid aspects, the order of cognizance dated 22.05.2007 passed in Complaint Case No. 1085 (C) of 2007 pending before the Judicial Magistrate, Patna is quashed so far it concerns the above named petitioner. This application is accordingly allowed. Anand/AFR ( Sheema Ali Khan, J.)