IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47081 of 2007 1. Kishore Kumar ,S/o Sri Ramlakhan Prasad Yadav, resident of Village- Parsadi, P.S. Parsa, Dist-Chapra. 2. Suman Jha @ Suman Kumar Jha ,S/o Late Bam Bam Jha, resident of Village-Bhairaw Balia, P.S.-Sakri, Dist- Madhubani. 3. Ravindra Prasad, S/0 Sri Girija Prasad, resident of Village-Sikraul P.S.-Sikraulakh, Dist-Buxar --------- ----- Petitioners - V e r s u s – 1. The State of Bihar 2. Ahok Kumar Verma, S/o Late Tara Shankar Pd. Verma, resident of Mohalla- Chitra Gupta Nagar, Ward No.-15, P.S.Town P.S. Madhu- Bani, Dist. Madhubani ------- ------ Opp.Parties -------- 5 21-10-2008 Heard Mrs.Soni Srivastava, learned counsel for the petitioners as also Mr. Jharkhandi Upadhaya, learned A.P.P. for the State. Although Opp. Party no.2 , the complainant, on due service of notice has appeared by filing Vakalatnama, yet at the time of hearing of this application neither the complainant nor his learned counsel is present. The petitioners, who are Senior grade officials of the Bharat Sanchar Nigam Limited, have prayed for the quashing of the order dated 27.8.2007 passed in Complaint Case No.1217 of 2006 by Sri Vijay Kumar Singh, Sub Divisional Judicial Magistrate, Madhubani, whereby he has been pleased to take cognizance of offences under Sections 406 and 504/34 I.P.C. against the petitioners and has directed for issuance of summons against them. An additional prayer has been made for quashing of the entire criminal prosecution of the petitioners arising out of the said complaint case. - 2 - Briefly stated the prosecution case is that one Ashok Kumar Verma , the complainant , impleaded herein as Opp.Party no.2, filed the aforesaid complaint case on 14.11.2006 inter alia alleging the commission of offences under Sections 420 and 120B I.P.C. on the ground that he was desirous of being registered as a contractor under Bharat Sanchar Nigam Limited, Madhubani ( hereinafter referred to as the “B.S.N.L”) and in that regard he made an application on 22.9.2006 enclosing all documents before petitioner no.1 and that petitioner no.1 after going through the application of Opp.Party no.2 had given out that the said application would be forwarded to the Chief General Manager, Bihar,Patna for necessary orders and, thereafter, due process would be taken up regarding his registration as a contractor. It is further alleged that till 30.10.2006 Opp.Party no.2 did not receive any information, whereupon he visited the office of petitioner no.1 and a photo copy of letter dated 13.10.2006 addressed to the General Manager (Development), B.S.N.L., Bihar Circle was handed over to him and he was asked to deposit Rs.500/- for form for registration and Rs.2500/- for registration as E- Grade Contractor. It is further alleged that on enquiry regarding the manner and place for depositing the amount and from where the form would be made available, petitioner no.1 suggested to hand over the amount to petitioner no.2 and on information with respect to deposit on 7.11.2006 letter of registration would be handed over to him at Madhubani Inspection Bunglow . The complainant claims that in good faith he in accordance with the directions of petitioner no.1 met - 3 - petitioner no.2 and deposited the amount with him as petitioner no.2 was familiar to him from before. It is said that on 7.11.2006 the complainant went to the Inspection Bunglow , Madhubani where all the three petitioners were present and on demand of registration letter by Opp.Party no.2, he was asked to leave the place whereupon he demanded for refund of the deposited amount whereupon all the three petitioners became angry and abused him in filthy language. Aggrieved thereby the complainant claims to have visited Patna and made complaint to the higher authorities in respect of the occurrence where he was assured of being given the job , but till date he has neither been given the registration letter nor the deposited amount has been returned. The complainant was of the view that the amount of Rs.3000/- deposited with petitioner no.2 had been misappropriated by him and petitioner no.1. It was submitted on behalf of petitioners that they are innocent and have been falsely implicated in this case on wrong submissions. In this connection, it was submitted that petitioner no.1 was not competent to register any person as contractor under B.S.N.L. and as a matter of fact it was only the Chief Managing Director (C.M.D.), Patna who was the competent authority for such purpose and so far as the forms regarding registration is concerned, it is sold at the District Offices’ counters on payment by cheque of a sum of Rs.500/- . It is submitted that on payment of Rs.500/-by Opp.Party no.2, he had been handed over a form from the selling counter and as far as the assertion of deposit of Rs.25,00/- is concerned the same has - 4 - been denied as being asserted only to make out a case. It has further been submitted that no offence either under Section 406 or 504 I.P.C. can be said to have been made out against the petitioners. Every breach of trust may not attract the mischief of Section 406 I.P.C.. It must be shown that petitioner misappropriated the property and converted it to his own use. Mere refusal to return the property, which was entrusted to him will not constitute an offence under Section 406 I.P.C. That apart an act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil courts but a breach of trust without mens rea would not give rise to a criminal prosecution. When there was no requirement for the complainant to deposit a sum of Rs.2500/- for being registered as a contractor under B.S.N.L. and only the properly filled up form to be purchased on payment of Rs.500/- was to be submitted. It is not understandable why such amount of Rs.2500/- , if the prosecution case is to be believed, was paid. Even the offence under Section 504 I.P.C. does not appear to have been made out because the allegation itself appears to be vague and uncertain. Due regard being had to the facts and circumstances of the case, the prosecution of the petitioners appears to be an abuse of the process of the court which cannot be sustained in the eye of law. For the reasons stated above, this application is allowed and - 5 - the criminal prosecution so far as the petitioners herein are concerned is hereby quashed. ( Abhijit Sinha, J) NKS/-