IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.37187 of 2007 1. NAGESHWAR PRASAD SWARNKWAR @ NAGESHWAR SAH, son of Late Ram Lakhan Sao, Proprietor/ Partner M/s Alka Jewellers, Resident of Gudari Bazar, Police Station- Hajipur, District- Vaishali & 2. Rakesh Kumar @ Ranjan Kumar, son of Nageshwar Prasad Swarnkar alias Nageshwar Sah, Resident of Gudari Bzar, Hajipur, Police station-Hajipur, District- Vaishali. Versus 1. THE STATE OF BIHAR & 2. Rajendra Prasad, son of Late Bulkan Sao, Proprietor of M/s Raj Laxmi Jewellers, Sao Complex, Bakerganj, Police Station-Kadam kuan, District- Patna. ----------- 7/ 29.01.2010 Heard learned counsel for the parties. The petitioners seek quashing of the entire proceeding of Complaint case No.1096 © of 1999/ T.R. No.865 of 2000 in which cognizance has been taken under sections 406 and 420 of the Indian Penal Code and by order dated 26.2.2004, the court below has refused to discharge the present petitioners under the provision of section 245 (1) of the Cr. P.C. The case of the complainant-opposite party no.2 is that he entered into the business of supply of silver jewellery between the present accused persons from 5.8.1997 onwards. But, unfortunately, after having taken 10Kg 500 Gram silver ornaments worth Rs.65,000/- they refused to make payment for the same. After examination of some witnesses under section 202 Cr. P.C., the court took cognizance for the offence under sections 406 and 420 of the Indian Penal Code and refused to discharge the accused persons on their application. From the facts of the case, it appears that the complainant had readily agreed to enter into business transaction with the accused persons and there is no element of deception at the initial stage which is the primary or essential ingredient for the offence under section 420 - 2 - of the Indian Penal Code. With regard to section 406 of the Indian Penal Code, there are repeated decisions of the Hon’ble Supreme Court, wherein, it has been stated that mere breach of contractual obligations resulting in non-return or non-payment of money does not necessarily make out a case under section 406 of the Indian Penal Code. Under the circumstances, this quashing application is allowed and the order dated 26.2.2004 passed by the Judicial Magistrate, 1st Class, Patna, in Complaint case no.1096 © of 1999/ T.R. 865 of 2000, by which he has refused to discharge the present petitioners, is hereby set aside. JA/- (Anjana Prakash, J.)