IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8191 of 2009 1. Ghanshyam Prasad Gupta, son of Late Deep Narain Lal Gupta. 2. Pappu Kumar Gupta, son of Ghan Shyam Prasad Gupta. Both resident of Mohalla- Mohdinagar, P.S.;_ Mojahidpur, in the town and District of Bhagalpur. ……..Accused..Petitioners. Versus 1. The State of Bihar. 2. Manohar Sah, son of Late Devi Lal Sah, resident of Mohalla- Mohdinagar, P.O.- Mirjanhat, P.S.:- Mojahidpur, in the Town and District- Bhagalpur. …..Complainant…Opposite Parties. For the petitioners :- Mr. Ashutosh Jha, Advocate. Mr. Bijay Kant Mishra, Advocate. Mr. Narendra Pandey, Advocate. For the State :- Mr. H. A. Khan, A.P.P. ----------- 06. 2. 02.2011. This criminal miscellaneous petition has been filed for quashing the order dated 14. 01. 2009 passed by Sri Gulam Goss, Judicial Magistrate, Bhagalpur, in Complaint Case No. 118 of 2008/T.R. No. 1703 of 2009, by which learned Judicial Magistrate has taken cognizance for offence under Sections 420, 406 and 468 of the Indian Penal Code. 2. The prosecution case as alleged in the complaint petition that accused Ghanshyam Prasad Gupta took the complainant in the pretext for treatment by enticing him, to Sub Registry office at Bhagalpur and get power of attorney executed on 02. 11. 2007 vide Document No. 449 of 2007 with regard to land and house standing therein in Ward No.. 35 New 50, Khata No. 475, Plot No. 1187 area 4.19 decimal. It 2 is further alleged that Ghanshyam Prasad Gupta after execution of the deed started threatening him to oust from the house. The complainant executed deed of cancellation on 10. 12. 2007. On getting knowledge of cancellation, accused no. 1, 2 and 3 came and threatened that he has executed sale deed with regard to the land in the name of wife on 14. 12. 2007 by registered sale deed and asked to vacate the house. It has further been alleged that complainant went to the Registry office, but the certified copy of the said registered sale deed of the land showing that said deed has been executed showing consideration money of Rs.2,05,000/- and Rs. 1,20,000/- has been paid by two cheques, one cheque Rs. 40,000/- and other cheque Rs. 45,000/- has been paid which is palpably false as the complainant has no account in any Bank and neither cash nor cheque has been paid and cheque number appears to be forged and fabricated. It has further been alleged that complainant went to the house of the accused persons to make an enquiry then accused persons 1, 2 and 3 abused and throw him out by slaps and fists. On the complaint petition, the complainant examined on solemn affirmation and witnesses also examined on behalf of the complainant and taking into consideration witnesses of the 3 complainant and his witnesses, summon ordered to be issued against accused persons after taking cognizance under Sections 406, 420 and 468 of the Indian Penal Code. 3. Learned counsel for the petitioners has challenged this order on the ground that no offence is made out and in the interest of the justice to permit the prosecution to continue as the allegation made is predominantly a civil wrong and may be abused of the process of Court as it does not make out a criminal offence and placed reliance upon decision reported in 1988 SC page 709 and 2007 (4) PLJR page 184. 4. Learned counsel for the State submits that offence as alleged makes out an offence if an offence is made out criminal prosecution can not be quashed merely on the ground than a civil remedy is also available as the criminal prosecution and civil remedy can ran together. 5. However, on the respective submissions of the parties, question for consideration whether order taking cognizance is sustainable. 6. However, taking into consideration the allegation made in plaint that Ghanshyam Prasad Gupta on the pretext of treatment taking the complainant to the Sub Registry office by enticing him 4 and get power of attorney executed and thereafter, threatened oust him with regard the lands and in consequence, the complainant got the deed of cancellation of power of attorney executed on 18.12.2007, whereas the sale deed have been executed by the accused on 14. 12. 2007 in favour of his wife and son. 7. However, the power of attorney mentions Clause 'Ga' that if necessity arise then the accused shall sell the land and will gave the sale proceed to the complainant but the accused sold the land in the name of his son and wife and did not pay the sale amount, though, made false averment in sale deed about payment of consideration amount as alleged in complaint itself, makes out an offence of criminal breach of trust when amount made in sale deed that part of consideration money paid by cheque whereas complainant asserted that he has no account in any Bank. 8. However, taking into consideration the entire allegation, it is apparent that power of attorney itself executed by deception and further after execution of the power of attorney, sale deed was executed by Ghanshyam Prasad Gupta in favour of his wife and son and even the sale proceed not paid, apparently shows 5 unlawful loss to the claimant and unlawful gain to the accused and his family i.e. wife and son of Ghanshyam Prasad Gupta. 9. Having taking into consideration of the allegation made itself give a smell for breach of trust simultaneously resulting unlawful gain to the accused and unlawful loss to the complainant. It has further been alleged that land was sold, but the money has not been paid and hence it amounts to breach of trust depose and repose in the accused Ghanshyam Prasad Gupta to sale the land and money be made available the executant Manohar Sah. However, allegation itself, money has not been paid and hence, allegation made in the complaint is the clear case of breach of trust and breach of trust would simultaneously to be a civil wrong and criminal offence and if allegation on the complaint on the face value of the allegation itself makes out an offence on the basis of the allegation in the complaint, then order taking cognizance by the Magistrate is sustained. 10. Learned counsel for the petitioners relied upon decision reported in 1988 SC page 711. However, under facts and circumstances of the case, a trust was created and four trustees including the settler and his son, house and trust property was given in tenancy to 6 the wife to the son of the settler and a complaint filed by one of the trustee for offence under Sections 406 and 467 and even notice issued on behalf of the trust calling upon and wife and son of the settler in whose name, the tenancy created to surrender tenancy and wife of the said trustee volunteered to surrender the tenancy and in such circumstance it was submitted that there was no justification for initiation of the criminal proceeding and under the facts and circumstance Supreme Court took the view that case was one type where if at all the facts made constitute civil wrong and ingredients of criminal offence rather wanting and held that criminal case can not continue. 11. However, under the facts and circumstances of the allegation made in the case at hand, the allegation makes itself smell inducement and deception as well as breach of trust as illegal gain and illegal loss. Hence, under the facts and circumstances, principle initiated in decision reported in A.I.R. 1988 SC 709 is not applicable to the facts and circumstances of the case. 12. However, with regard to the case reported in 2007 (4) PLJR 185, the appellant was an authorized dealer of Hindustan Lever Limited and required to deliver Form IX-C prescribed in terms of Bihar Sales 7 Tax Rules and a complaint was filed alleging for offence under Sections 427, 384 and 420/34 of the Indian Penal Code. Cognizance was taken and against that cognizance under the facts and circumstances of the case, as it was not disputed that the appellant was a Redistribution Stockist carried on commercial transactions and till 1998-99 , the complainant raised no grievance for non-supply of Form IX-C and was compelled to continue the business despite non-supply of Form IX-C and in this facts and circumstances held that non-issuance of the said form ex-facie cannot give rise to commission of any offence and it has been held that under the facts and circumstances of the case, there is no element of outstands and that view caused in wrongful loss and in wrongful gain for themselves. 13. However, having regard to the facts and circumstances in the allegation that accused persons took the victim in the pretext of his treatment and got the deed of power of attorney executed, though, with condition if necessity arise he will sell and to pay sale proceed to the complainant. It is further alleged that after execution of the deed, accused persons thrown out and when the complainant shown his intention to cancel and got it cancelled on 18. 12. 2007 and prior to that on 14. 12. 2007, sale deed was executed in the 8 name of wife and son and further allegation that even consideration amount as mentioned in the sale deed has not been handed over to the complainant and hence apparently an offence of breach of trust is made out taking into consideration the facts and circumstances there is apparently false pretext and deception and further breach of trust causing unlawful gain to the accused persons and unlawful loss to the complainant and hence taking into consideration the entire allegation, there is allegation of the face value makes out an offence, Hence I do not find to interfere with the impugned order and hence the petition is hereby dismissed. m.p. ( Gopal Prasad, J.)