IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16525 of 2000 OM PRAKASH Versus STATE OF BIHAR & ANR ----------- 5 16.8.2010. Heard Sri Aditya Narayan Singh, learned counsel appearing for the petitioner and the learned A.P.P. for the State. It is admitted that the petitioner had hired the services of the complainant and had placed some orders for furnishing his shop by fabricating different furnitures and structures in that behalf. It also appears almost admitted that the contracted work was completed by the complainant and as per his allegation he presented a bill of a particular amount as indicated in the complaint petition which bill was partly paid and as per allegation was refused to be paid partly even after repeated requests in that behalf. On the very facts stated, the court feels that there could not be any application of Section 420 of the Penal Code. The summoning order to that extent is bad on fact. As regards Section 406 of the Penal Code, it is admitted that there was no entrustment of any property which we suppose is the transfer of some movable - 2 - property from one’s possession, i.e., of the complainant, to the other’s possession, i.e., of the accused. As regards the dominion over any property, this court holds a view that dominion could be created over a property even in a case of contractual nature as like the present one, but in that case concrete evidence shall have to be placed before the court convincing it that the dominion was created over a property which could rightly, fully and lawfully be claimed as a matter of performance of part of the contract by the complainant as demanded by the accused. If there could not be any definite allegation that any particular property was created on account of rendering of any service which was left in the dominion of the accused then in that case it may not be a case under Section 406 of the IPC as defined by Section 405. In most of such cases which could be covered by the above construction of the term “dominion over property” it could be a civil liability and in that case a suit could be legitimately brought before a proper civil court and that being the position it could be said that the allegations contained in the complaint petition bearing - 3 - no.328(C)of 2000 created a civil liability and in that light the whole prosecution initiated through that complaint petition appears meaningless and without any purpose. The same is hereby quashed. B.Kr. ( Dharnidhar Jha, J. )