IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6164 of 2009 1. M/S Maffick Home Products Pvt. Ltd. 70-C Purna Das Road, Kolkata-700029, through its Managing Director, Debabrata Bhattacharya. 2. Debabrata Bhattacharya, son of Sri Samarendra Nath Bhattachargee, Managing Director, Maffick Home Products Pvt. Ltd. 70-C, Purna Das Road, Kolkata-700029.. 3. Jayant Ghosh, son of Sri Chitaranjan Ghosh, Director, Maffick Home Products Pvt. Ltd. 70-C, Purna Das Road, Kolkata-700029. ………………………….Petitioners. Versus 1. The State of Bihar. 2. Sri Anand Kumar, Proprietor of M/s Utopia Service, Nagendra Niwas, Behind Gorakhnath Complex, East Boring Canal Road, P.S. Budha Colony, Town and District- Patna. ………………………………………Opposite Parties. For the petitioners :- Mr. Rajeev Roy, Advocate. For the O.P. :- Mr. Ram Pravesh Sharma, Advocate. Mrs. Madhavi Kumari, Advocate. For the State :- Mr. Jharkhandi Upadhaya, A.P.P. ----------- 5. 18. 1. 2011. This criminal miscellaneous petition has been filed for quashing the order dated 31. 05. 2007 passed by Shri Dashrath Mishra, Judicial Magistrate, Patna, in Complaint Case No. 670 © of 2007 by which cognizance has been taken under Sections 406 and 420 of the Indian Penal Code. 2. The prosecution as alleged in the complaint petition accused Debabrata Bhattacharya and Animesh Banerjee, Direcors of M/S Maffick Home Products Pvt. Ltd. approached the complainant to be C.N.F. agent for Bihar and demanded Rs. 3,00,000/-. However, it was agreed to make payment at least 50% of the amount on 04. 09. 2006 to the petitioners as C.N.F. agent and further agreed that rest 50% may be paid within sixty days from the date of agreement. In the meantime goods will be dispatched from the company to the complainant M/S Utopia Services, Patna and the 2 complainant paid Rs. 1,50,000/- through Bank Draft and handed over the same to Debabrata Bhattacharya in presence of Animesh Banerjee and it was agreed that agreement will be prepared and the complainant is required to sign and subsequently, on 08. 09. 2006, an agreement was entered between the complainant and Debabrata Bhattacharya in presence of witnesses Amitabh Gupta and Santosh Saran, employees of M/S Maffick Home Product Pvt. Ltd. The complainant was handed over the money receipt and appointment letter and it was impressed that goods are being dispatched for selling and distribution in the State of Bihar. It is alleged that complainant appointed a packer boy and computer operator and even arrange a godown. However, inspite of assurance, goods were not dispatched. However, the complainant approached the company on 03. 11. 2006 for delivery of goods then Debabrata Bhattacharya as well as other Directors demanded Rs. 1,50,000/- in cash. However, the complainant smell foul play, he insisted for delivery of goods first thereafter, he will make payment through bank draft. However, they were not ready and the complainant made a request to return of Rs. 1,50,000/- which was earlier paid through bank draft, then Debabrata Bhattacharya and others asked the complainant to wait for some time, but neither the said amount was refunded nor any communication was made. Thereafter, the complainant gave a legal notice and the company was not ready to return the money and hence it is alleged to have misappropriated the whole amount. After taking into consideration the complaint petition, statement of 3 complainant on S.A. was recorded. 3. Learned counsel for the petitioners submitted that at the time of agreement there is no element of criminal intention to misappropriation of money as both parties have claim and counter claim and hence contend that nature of claim appears to be civil in nature and hence allegation made does not make out an offence under Section 406 of 420 of the Indian Penal Code or a case of criminal misappropriation and hence requires to be quashed in inherent power as continuation of the proceeding among abuse the process of the court. 4. Learned counsel for the opposite party however, contend that money was deposited under a clear stipulation that second amount will require to be paid within sixty days, but in the meantime, the petitioners' company shall make supplying of the goods. However, no goods were supplied within the period and the consignment never reached to the complainant. However, it was established amount paid by the complainant, which was not returned even on assurance to return shows the intention at the outset was otherwise. 5. The learned counsel for the petitioner further submitted that at the time of admission of this criminal miscellaneous petition, notice was issued to opposite party by order dated 18. 08. 2010 on the prayer of the learned counsel for the petitioners that petitioners are still ready to refund the said amount of Rs. 1,50,000/- which was deposited by the complainant as 4 security money as apparent from the order. But when after notice, opposite party no. 2 appears, the petitioners not ready to pay and adamant to hear the case to be decided on merit which shall shows that intention of the petitioners was otherwise or deceptive. Hence question for consideration whether the petitioners have made out a case for breach of trust or cheating. 6. However, in this case it is alleged that Director approached over the payment of the complainant as C.N.F. agent of the company and an agreement was arrived at to pay Rs. 3,00,000/- out of which Rs. 1,50,000/- was paid at the time of agreement. It is alleged in the complaint petition that Rs. 1,50,000/- was paid for being appointed as C.N.F. agent which was impressed upon that supply will be made within the stipulated period of sixty days and impressed upon that consignment is being sent. However, no consignment reached during the period of sixty days and the complainant approached the petitioners then it was assured that consignment will be sent and ultimately it was refused and even after refusal, money was not returned, though, whenever assurance was given as alleged and even during the pendency of the litigation, money was not returned even orders dated 18. 08. 2010 mentions of the petitioners are ready to refund the sum of Rs. 1,50,000/-. 7. The learned counsel for the petitioners relied upon decision reported in 2008 (4) PLJR 154. The fact stated in the complaint petition are that the complainant was running a business of footwear in the name and style of M/S Maa Tara Enterprises 5 situated at Kankarbagh, Patna, and the complainant requested the petitioners to provide a distributorship of footwear and to send the footwear so that the complainant could run his business in a better manner. For this purpose it is said that Rs. 50,000/- was deposited by the complainant as security and it was further agreed that the complainant should pay Rs. 10,00,000/- through demand draft and when the amount would exceed Rs. 9,00,000/-, the petitioners will to supply the footwear to the complainant. The allegation is that the complainant deposited Rs. 9,98,500/- through different demand drafts in favour of the petitioners, but even after the deposit of the said amount the footwear was not supplied. However, learned counsel for the petitioners submits that the entire allegations were false and the only money that has been deposited by the complainant is Rs. 50,000/- for which the petitioners are paying interest @ 8% till date. It was further pointed oiut that the demand drafts 1-4 have been issued by M/S Anwar House whereas demand drafts dated 28.10.2005 and 24. 11. 2005 and subsequent dates upto 02. 02.2006 were issued by M/S Rajdeep Footwar whereas demand drafts, dated 12. 04. 2006 and 15. 04. 2006 were issued by M/S Rajdhani and M/S Balaji Sales. Hence it was asserted that except for the demand draft no. 205739, dated 04. 02. 2006 for the amount of Rs. 15,000/-, demand draft no. 205748 both dated 10. 02. 2006 for Rs. 30,000/- each which have been issued by M/S Maa Tara Enterprises, the rest are not by the said company and as such the statements are palpably false and fabricated. The complainant based his claim on 6 documentary evidence rather than on oral evidence to make out an offence under Sections 420 and 406 of the Penal Code. The witnesses examined on solemn affirmation, they did not supported the facts stated in the complaint to the extent that they have not disclosed where and how the agreement was reached between the parties and question for consideration whether offence under Sections 406 and 420 of the Penal Code is made out and it was held that in absence of mens rea every breach of trust is not criminal breath of trust and further held that relevant consideration whether there was criminal intention to misappropriate at the time when payment was made and held in facts and circumstances of the case that case can not be held to be a case for offence under Section 406 I.P.C. criminal misappropriation. 8. However, in the present facts and circumstances of the case at hand, Directors have approached with a proposal to appoint the complainant as C.N.F. agent by M/S Maffick Products Pvt. Ltd. and it was agreed payment of Rs. 3,00,000/- and thereafter, 1,50,000/- was paid then agreement was entered into appointing the complainant as C.N.F. agent with assurance to supply the goods within sixty days and amount of Rs. 1,50,000/- was paid to the petitioner Debebrat Bhattacharya and even on assurance to supply the goods, never supplied any goods nor consignment reached to the destination and even on demand to return the amount, the amount was not returned. 9. Learned counsel for the opposite party however, 7 contends that it is not a case of mere breach of contract, but amongst to breach of trust. The petitioners were required to send goods, but consignment never reached even after sixty days, complainant requires to pay Rs. 1,50,000/-, but the goods did not reach to destination and further even on assurance the money has not been returned and hence raised doubt about the intention of the petitioners at the outset of the agreement and has relied upon decision reported in 2010 (3) PLJR 102, M/S Neelgiri Herbal Vrs. State of Bihar and others). 10. However, if the complainant was appointed as C.N.F. agent on deposit Rs. 1,50,000/- with assurance to supply the goods in between sixty days. However, goods were not supplied and petitioners play foul play and even demanded the amount as security money returned but on assurance the same was not returned and further even at the stage of admission, order dated 18. 08. 2010, shows that petitioners pray for notice to the complainant on pretext that they are ready to pay. But after opposite party appears they refused to pay. However, subsequent conduct of the petitioners itself suggest the intention. 11. However, in similar circumstances relied upon decision reported in 2010 (3) PLJR 102, it has been held that breach of trust vitiating the assurance given to the complainant and subsequent act of cheating by ignoring to pay admitted dues even after assurance and hence it is not a fit case to quash. 12. Hence having regard to the facts and circumstances 8 of the case, I am of the opinion that points raised does not make out a ground to quash the criminal case and hence the application is dismissed. m.p. ( Gopal Prasad, J.)