IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25677 of 2007 BHIKHARI SINGH, son of Jagdish Singh, resident of Village- Shitalpatti, P.S. Taraiyan, District- Saran...........Petitioner. Versus 1. The State of Bihar. 2. Saroj Kumar Gupta, son of Late Shiv Nath Prasad Gupta, resident of Village- Bari Mushehari, P.S. Chapra Muffasil, P.O. Khaira, District- Chapra, Saran, Bihar...Opposite Parties. ----------- \ For the petitioner : M/S. M.S. Madhup and Ram Pravesh Kumar, Advocates. For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No.2 : Mr. Sangeeta Sharma, Advocate. ----------- O R D E R The petitioner one of the two named accused of complaint case no. 2164 of 2005 has prayed for quashing of the complaint case including the order dated 1.8.2006 passed therein by Sri V. P. Tiwari, J. M. Ist Class, Chapra, whereby he has taken cognizance of offences under Sections 406 and 420 I.P.C. One Saroj Kumar Gupta, the complainant, impleaded herein as opposite party no.2, filed the said complaint on 3.9.2005 inter alias alleging commission of offences under Sections 419, 420, 467,468,471 and 406 I. P. C. by the two co-accused from 24.4.1999 towards. According to the complainant the accused persons carry on business in brokerage of share certificates and bonds through their agency “Share Market Taraiya” and the complainant having come in association with them through monetary transactions with them whereby he had earned suitable profits by investing and selling in share certificates and bonds and thereby had developed visiting terms. - 2 - It is said that having full faith in the accused by reason of their past records and performance and their suggestions of lucrative profits the complainant paid by cheque on 24.4.1999 Rs. 39,000/-, on 12.1.2001 Rs. 7000/- and then again on 23.12.2001 Rs. 99,000/- for investing in suitable bonds and share certificates and the said cheques were encashed. The plaintiff also invested Rs. 57000/- by way of cash for which a receipt was granted. The money is said to have been invested in share certificates and bonds of Tata Communication, T.C.L., TISCO etc., in the name of the complainant, his wife, mother and son, the full details whereof has been furnished in the complaint petition. It is alleged that some six months prior to the filing of the complaint petition, the complainant fell in need of money and he handed over to the accused some bonds and share certificates for premature redemption but the accused persons advised the complainant not to redeem those bonds and share certificates and to wait for some time longer by which time more profits were expected. However, since the complainant was in urgent need of money and on pressure being put, the accused kept bonds of T.C.L. worth of Rs. 1,00,000/- and solicited two months time to enable them to sell or get them redeemed by the company and make payment. It is further alleged that when on expiry of two months when no money was forthcoming, the complainant made demand for the money but payment was avoided by the accused under one pretext or the other. Thereafter, the complainant allegedly went to another share broker and showed him the share certificates and bonds and was surprised to - 3 - learn that the same were fraudulent and not genuine and that they had no market value at all. The complainant was also given to understand that the accused had got prepared bogus bonds and share certificates which they had circulated in the market to the persons including the complainant. It is further alleged that in the meantime the accused persons closed their office in Tairya and having shifted to Patna started run their brokerage under the name and style of “Hope Charitable International Trust”. The complainant is said to have requested the accused to purchase the share certificates worth Rs. 1,00,000/-themselves which they refused to comply with. On the aforesaid premise, the complainant was sanguine that the accused had induced him in such a manner as to misappropriate his money by issuing bogus bonds and share certificates. Assailing the impugned order, it was submitted by the learned counsel for the petitioner that curiously the complainant had not disclosed in the complaint petition the parentage and address of his witnesses which only goes to show that the complainant had falsely implicated the petitioner in this case. Denying the allegation and aspersions the cast on the petitioner it was submitted that admittedly the bonds and share certificates were handed over to the petitioner by his wife, mother and son and, therefore, the question of misappropriation does not arise. It was further submitted that in the flexible share market, the value of share certificates and bonds are amenable to raise and fall and unfortunately when the complainant requested for redemption of his share certificates the market had - 4 - developed a preceding trend. It was also submitted that the complainant and his family members had waited for six long years for the value share certificates and bonds to increase but when the market value had fallen, the complainant had approached the petitioner for which he could not be blamed. It was also submitted that there was no material on record to show that the bonds and share certificates were forged and fabricated except the bald and omnibus allegations of other brokers. It was further submitted that even otherwise the dispute was civil in nature and the petitioner could not be held liable for the criminal offence more so when the ingredients of the offences under Sections 406 and 420 I.P.C. were not made out and cognizance had been taken mechanically. The complainant opposite party no.2 has appeared and filed a counter affidavit wherein the accusations of the learned counsel for the petitioner have been denied. It was also submitted that had the documents been genuine he would have received interim and final dividends which is given by the company as an interest twice in a year and in this connection it was submitted that the petitioner received dividends only of such share which were genuine and not forged and that the bonds and share certificates handed over to the accused for redemption had neither been returned back nor the money had been given. It was also submitted that the petitioner is involved in several cases being Case No. 434 of 2005 under Sections 420, 467 and 468 I.P.C. and Case no. 886 of 2006. - 5 - “Dishonesty” has been defined in Section 24 I.P.C. to mean deliberate intention to cause wrongful gain or wrongful loss” and when such intention deception is practiced and delivery of property is induced then the offence under Section 420 I.P.C. can be said to have been made out from which it can be said even prima facie that the petitioner’ dishonestly induced’ the complainant to part with money. Similarly, the offence of criminal breach of trust under Section 406 I.P.C. contemplates the creation of a relationship whereby the owner of the property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening on a certain event and when there is no question of any entrustment of property it can be said that the offence under Section 406 I.P.C. had been made out. In the instant case, admittedly, the plaintiff had handed over share certificates and bonds to the accused for their redemption. Instead of share selling certificates and bonds in the open market at whatever rate was prevailing but without doing so the accused preferred to withhold the shares certificates and bonds without redeeming them and thereby causing wrongful loss to the complainant with deliberate intention. That apart whatever submissions have been advanced by the learned counsel for the petitioner amounts to looking into or enquiry in respect of disputed facts which can not be done at this stage. The submissions advanced by the learned counsel for the opposite party no. 2 regarding the share certificates and bonds being - 6 - forged and fabricated deed is also a matter which requires enquiry/investigation which again has to be proved or disproved by leading cogent evidence which can only be done in full dressed trial. Accordingly, I find no merit in this application, which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna Dated: the 30th July,2009. U.K./A.F.R.