IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16333 of 2008 Farukh Ahmad @ Farooque Ahmad, son of Late Noor Mohamad Resident of G 117, P.C. Colony, Kankarbagh, P.S. Kankarbagh, District-Patna. ……………………………………………….............Petitioner. Versus 1. The State Of Bihar. 2. Syed Hasan, son of Late Syed Jafar Hussain, resident of Capital Market, Muradpur, P.S. Kotwali, District- Patna. ………………………………………......Opposite Parties. ---------------------------------- For the Petitioner : Mr. M.P. Bharti, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mr. Sanjay Kumar, Advocate. ---------------------------------- O R D E R 7. 14.10.2011. The petitioner, Farukh Ahmad alias Farooque Ahmad, has filed this application under Section 482 of the Code of Criminal Procedure for quashing the order dated 8.1.2008 passed by the Chief Judicial Magistrate, Patna, in Pirbahore P.S. Case No.294 of 2004, Taking the cognizance of the offence under Sections 406 and 420/34 of the Indian Penal Code against the petitioner and the co-accused, Baiju and also the aforesaid criminal proceeding. 2. The brief facts leading to this application is that the 2 complainant-opposite party no.2, Syed Hasan, filed the complaint case on 30.8.2004, numbered as Complainant Case No.2056(C) of 2004, in the court of the Chief Judicial Magistrate, Patna, with the allegation that he had let out the shop no.7A situated in Capital Market, Muradpur, Patna, to accused-petitioner, Farukh Ahmad alias Farooque Ahmad, through written agreement dated 11.11.1992 after taking Rs.15000/- as security money on monthly rent of Rs.540/-. It was also agreed that after every three years the rent will be enhanced 25 paise per squire feet and in case of default of payment of monthly rent for two consecutive months, the shop will have to be vacated by the accused- petitioner. The petitioner, Farukh Ahmad alias Farooque Ahamd, was tenant of the shop since 11.11.1992 and since March, 1995 he avoided to pay the rent on false pretext. The petitioner, Farukh Ahmad alias Farooque Ahmad and the co- accused, Baiju time and again used to show their problem in not paying the rent to the complainant-opposite party no.2 and had assured him to pay the rent from March, 1995 to August, 2004, amounting to Rs.72,000/- after selling the land. On 20.8.2004 in the night at about 11 P.M., the complainant-opposite party no.2 came to know that the accused persons are removing the articles from the shop and trying to flee away without making payment 3 of arrears of rent. The complainant-opposite party no.2 went to his shop and found that the accused persons had removed almost all the articles from the shop and fled away without making payment of arrears of rent Rs.72,000/-. Thereafter, the complainant-opposite party no.2, put his own lock in the shop and made request to the petitioner at his house to make payment of the arrears of rent of the shop but he refused to pay the same giving threat to kill him. 3. The complaint petition filed by the complainant- opposite party no.2 was sent by the Chief Judicial Magistrate, Patna, to the Pirbahore Police Station for investigation and, accordingly, Pirbahore Police Station Case No.294 of 2004 was instituted on 8.10.2004 under Sections 406 and 420/34 of the Indian Penal Code against the petitioner, Farukh Ahmad alias Farooque Ahmad and the co-accused, Baiju, named in the complaint petition. The police on investigation submitted the chargesheet in the court of the Chief Judicial Magistrate, Patna, who on perusal of the case diary and chargesheet took the cognizance of the offence under Sections 406 and 420/34 of the Indian Penal Code against them. 4. Learned counsel appearing on behalf of the petitioner submits that the petitioner had paid the rent regularly till the 4 vacation of the shop on 5.12.1996 and when the petitioner demanded the security money Rs.15,000/- from the complainant- opposite party no.2 as deposited, as per the terms of agreement dated 11.11.1992, the complainant-opposite party no.2 did not return the security money and filed this complaint case on false pretext only to grab the security money Rs.15,000/- as given by the petitioner. It is also submitted that from perusal of the complaint petition, dispute appears to be non payment of the rent, which is civil in nature. 5. It appears from the complaint petition (Annexure-„1‟ to this application) that the allegation against the petitioner is that he vacated the shop as let out by the complainant-opposite party no.2 without paying the rent Rs.72,000/- as was due since March, 1995 to August, 2004. Section 406 of the Indian Penal Code relates to the punishment for criminal breach of trust which is defined in Section 405 of the Indian Penal Code and Section 420 of the Indian Penal Code relates to the cheating and dishonestly inducing delivery of property. Sections 405 and 420 of the Indian Penal Code are read as under: “405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over 5 property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses of disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 6. On reading the averments made in the complaint petition in their entirety and accepting the allegations to be true, the ingredients constituting the offence under Sections 406 and 420/34 of the Indian Penal Code are lacking as there is no averment that the complainant-opposite party no.2 entrusted the property which was dishonestly misappropriated or converted for use in violation of direction or legal contract or the accused- petitioner had fraudulent and dishonest intention to cheat the complainant-opposite party no.2 at the time of making the initial promise. From the complaint petition, which is the basis of the 6 F.I.R., the dispute appears to be non fulfillment of the terms of the agreement, which is civil in nature. As such, the taking of cognizance of offence under Section 406 and 420 of the Indian Penal Code through the impugned order appears to be an abuse of the process of the court. 7. Accordingly, the impugned order dated 8.1.2008 passed by the Chief Judicial Magistrate, Patna, in Pirbahore P.S. Case No.294 of 2004 and the criminal proceeding of the aforesaid case with respect to the petitioner are hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)