IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.26135 of 2008 Udai Shankar Ojha @ Udai Babbu, son of Late Shivlayak Ojha, Imperial Auto Finance, Patna, A-15, Second Floor, Lav-kush Tower, Exhibition Road, Patna, District-Patna. ……………………………………………………Petitioner. Versus 1. The State Of Bihar. 2. Dhiraj Kumar Sah, son of Ashok Sah, resident of village-Lakarigola Road, Keshopur, P.S. Jamalpur, District-Munger. ………………………………………....Opposite Parties. ---------------------------------- For the Petitioner: Mr. Abhay Kumar Sinha, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------------------------------- O R D E R 4. 25.10.2011. The petitioner, Udai Shankar Ojha @ Udai Babbu, has filed this application, under Section 482 of the Code of Criminal Procedure, for quashing the order dated 27.1.2007 passed by the Chief Judicial Magistrate, Munger, in Jamalpur P.S. Case No.56 of 2005, G.R. No.931 of 2005, taking cognizance of the offence under Sections 406, 420 and 120-B of the Indian Penal Code against the three accused persons including the petitioner. 2. In brief, the fact leading to this application, is that the opposite party no.2 filed the complaint petition, 2 numbered as Complaint Case No.342(C) of 2005, in the court of the Chief Judicial Magistrate, Munger, which was sent under Section 156(3) of the Code of Criminal Procedure by the court of Chief Judicial Magistrate, Munger, to the concerned police station for investigation and submitting the final form. Thereafter, on receiving the complaint petition, Jamalpur P.S. Case No.56 of 2005 was instituted by the police on 20.6.2005 under Sections 420, 120(B) and 406 of the Indian Penal Code against all the accused, named in the complaint petition, including the petitioner. The allegation of the opposite party no.2 is that the accused, Krishna Sah, used to do the business of stone chips, cements and the sands and the complainant- informant-opposite party no.2 used to purchase the same from him to sell the same on retail price. In course of the business transaction, Rs.34,000/- of the opposite party no.2 was deposited in excess with the accused, Krishna Sah and his wife, Asha Sahi. On 20.5.2004, the accused, Krishna Sah alongwith his wife, Asha Sahi, came at the house of the opposite party no.2 and told him and his wife, Gudia Devi, to purchase the old truck saying that they have already 3 purchased a truck through financer on installments. The accused, Krishna Sah, also told the opposite party no.2 and his wife that since Rs.34,000/- as deposited in excess is already with them, so only few amount will be required to be arranged for cash payment to the financer for purchasing the truck on installments. Thereafter, the opposite party no.2, became ready to purchase the truck and, accordingly, on 2.6.2004, he alongwith the accused, Krishna Sah, went to Patna at the office of the Imperial Auto Finance of the financer- petitioner, Udai Shankar Ojha alias Udai Babbu, where proposal was narrated to purchase the truck. The opposite party no.2, saw the truck bearing Registration No.H.R.38-8052 kept in the godown of the petitioner and he became ready to purchase the same. The petitioner disclosed the price of the said truck as Rs.4,31,000/- saying that he will finance Rs.3,00,000/- and the rest amount Rs.1,31,000/- will have to be paid in cash on which the accused, Krishna Sah, told the opposite party no.2, to deposit some money as an advance, then the opposite party no.2, handed over Rs.21,000/- to the accused, Krishna Sah, who handed over the same to the petitioner saying that Rs.34,000/- of the opposite party no.2 is with him, out of 4 which, he will give Rs.30,000/- to financer-petitioner and the rest amount Rs.80,000/- will be given by the opposite party no.2 on arrangement. The further case of the opposite party no.2 is that on 28.6.2004, he got prepared three drafts amounting to Rs.80,000/- in the name of Imperial Auto Finance, Patna, and informed to the accused, Krishna Sah, on which, Krishna Sah, told the opposite party no.2, to give the drafts saying that he will hand over the same to the financer-petitioner as he will go to Patna. Accordingly, opposite party no.2 handed over the drafts to the accused, Krishna Sah, who had come to his house to receive the same. After 4-5 days, the accused, Krishna Sah, with a man came at the house of the opposite party no.2 and got the signatures of Gudia Devi, the wife of the opposite party no.2 on the agreement book saying that the drafts had already been deposited in the Finance Company and the truck will be handed over within 4-5 days. After four days, the opposite party no.2 alongwith the accused, Krishna Sah, went to Patna, where he came to know from the financer- petitioner that the accused, Krishna Sah, has also become a party in agreement with his wife, Gudia Devi. Knowing the said fact, the opposite party no.2 asked the accused, Krishna 5 Sah, why he has cheated him and refused to purchase the truck on partnership saying to return the money. In course of hot exchange of words, the accused, Krishna Sah, told him to return the amount. After one day on reaching at his house, the accused, Krishna Sah, asked the opposite party no.2, to take the money from the petitioner as he had already written to him and refused to go to Patna with the opposite party no.2. When the opposite party no.2 went to Patna and met with the financer-petitioner, then the financer- petitioner informed him that as he has received Rs.21,732/- only, so he will return only that amount. Thereafter, the opposite party no.2, met to the accused, Krishna Sah, who refused to return the money saying that his money is not due upon him. As such, all the accused persons, named in the complaint petition, including the petitioner cheated the opposite party no.2, by taking Rs.1,13,268/- on false pretext. 3. The police on investigation submitted the chargesheet in the court of the Chief Judicial Magistrate, Munger, who on perusal of the case diary took the cognizance of the offence under Sections 420, 120(B) and 406 of the Indian Penal Code against the accused, Krishna 6 Sah, Asha Sahi, and the petitioner, Udai Shankar Ojha alias Udai Babbu and ordered to transfer the case to the file of the court of Sub Divisional Judicial Magistrate, Munger, for trial and disposal. 4. Learned counsel appearing on behalf of the petitioner submits that on refusal by the opposite party no.2, to purchase the truck, the accused, Krishna Sah, got adjusted Rs.62,451/- in the defaulted account of his wife, Asha Sahi, against the purchase of truck bearing Registration No.BR-1G/4328 by the accused, Krishna Sah, in the name of his wife and with respect to the payment of Rs.21,000/- by the opposite party no.2 to the petitioner, the petitioner has issued a cheque of Rs.21,732/- in the name of Gudia Devi, the wife of the opposite party no.2. Therefore, no offence for breach of trust or cheating to the opposite party no.2 has been committed by the petitioner. It is further submitted that that from bare perusal of the complaint petition, which is the basis of the F.I.R., it is apparent that only Rs.21,000/- was given to the petitioner out of the total amount Rs.1,31,000/-, which was to be paid as cash by the opposite party no.2 to purchase the truck of value of Rs.4,31,000/- and the petitioner was ready to return the said 7 amount to the complainant-informant-opposite party no.2. As such, on bare perusal of the complaint petition, no offence under Sections 406 and 420 of the Indian Penal Code is made out against the petitioner. 5. From the complaint petition, which is the basis of the F.I.R., Annexure-„1‟ to this application, it is apparent that only Rs.21,000/- was handed over to the petitioner by the opposite party no.2 against cash payment of Rs.1,31,000/-, by the opposite party no.2 to the petitioner for purchasing the truck and on refusing to purchase the truck, the petitioner was ready to return that amount. The drafts of Rs.80,000/- appear to be handed over to the accused, Krishna Sah, by the opposite party no.2. 6. Section 406 of the Indian Penal Code relates to punishment for criminal breach of trust which is defined in Section 405 of the Indian Penal Code. Section 420 of the Indian Penal Code relates to the punishment of cheating and dishonestly inducing delivery of property and cheating is defined in Section 415 of the Indian Penal Code. Sections 405 and 415 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 8 dominion over 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”. 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission cause or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” 7. From reading of the aforesaid provision, it is clear that to constitute the offence under Section 406 of the Indian Penal Code, there should be entrustment of the property to a person and the property should be dishonestly misappropriated or converted to his own use by that person. Similarly, for the offence of cheating, there should be deception by a person either by making a false or misleading representation or fraudulently or dishonestly 9 inducing any person to deliver any property. 8. If the allegation as made in the complaint petition, which is the basis of the F.I.R., Annexure-„1‟ to this application, is taken at its face value and accepted to be true in entirety, the same do not constitute the offence against the petitioner under Sections 406 and 420 of the Indian Penal Code as the ingredients required for the offence of criminal breach of trust and cheating are lacking. As such, the taking of cognizance of offence under Sections 420, 120(B) and 406 of the Indian Penal Code against the petitioner through the impugned order dated 27.1.2007 appears to be an abuse of the process of the court. 9. Accordingly, the impugned order dated 27.1.2007 passed by the Chief Judicial Magistrate, Munger, in Jamalpur P.S. Case No.56 of 2005, G.R. No.931 of 2005, with respect to the petitioner, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)