IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.12021 of 2008 1. Annie Joseph, wife of Dr. Cherian Joseph, at present Secretary General of News Broadcasters Association, 101- 103, Paramount Tower, C-17, Community Center, Janakpuri Police Station, Janakpuri, New Delhi-110058. 2. Deepak Shanitkumar Raja, son of Late Paolmashi Shantikumar T-Raja, at present resident of 201, Mayfair Residency, 9th Road, Khar (W), Police Station-Khar(W), Mumbai-400052. …………………………………………………..Petitioners. Versus 1. The State Of Bihar. 2. Ahmar Jawed, son of Sri Shameem Javed, Proprietor of M/s Rushi International, Opposite-Danish Apartments, Samanpura, Police Station-Shastrinagar, District-Patna. ………………………………………....Opposite Parties. ---------------------------------- For the Petitioners: Mr. Gouranga Chaterjee, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ---------------------------------- O R D E R 8. 17.11.2011. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 6.1.2006 passed by the court of Sri Manoj Kumar No.2, Judicial Magistrate, First Class, Patna, in Complaint Case No.2854(C) of 2005, summoning the four accused, named in the complaint petition, including the petitioners under Section 204 of 2 the Code of Criminal Procedure, on inquiry, finding prima facie case under Sections 406 and 420 of the Indian Penal Code. 2. In brief, the facts, leading to this application, are that the complainant-opposite party no.2, Ahmar Jawed, filed the complaint case, numbered as Complaint Case No.2854(C) of 2005, against the four accused, named in the complaint petition, including the petitioners with the contention that he is the proprietor of the Company, Rushi International, situated at Patna in Shaheen Palace, Samanpura, Raja Bazar, P.S. Shastri Nagar, District-Patna. He established the Company for the product of Homeopathic Medicines viz. HE-5000, KEEP IT UP, SHE-1000 and other medicines. The complainant- opposite party no.2, for the sale of the products, approached the accused nos.3 and 4, namely, Lalit Wahi and Vikash Wahi, the staffs of Advel Advertising, 14/8, Classic House, Doctor‟s Lane, Gole Market, New Delhi, and deposited the cash of Rs.10,77,384/- under proper receipt since April, 2003 to 5.9.2005 in their office for the advertisement of only two medicines, i.e., 3 HE-5000 and SHE-1000. After depositing the said amount, the accused nos.3 and 4, namely, Lalit Wahi and Vikash Wahi respectively released the advertisement of the products of the medicines, i.e., HE-5000 and SHE-1000 but advertisement was never released in respect to Medicine „KEEP IT UP‟. All of sudden, the accused persons sent the information regarding suspension of Advertisement vide Letter No.F/221 dated 26.8.2005 to the complainant-opposite party no.2 to the effect that the Company has not clear the dues of advertisement agency. After receiving the suspension letter regarding advertisement, the complainant-opposite party no.2 visited the office of the Advertising Agency, Gole Market, New Delhi, to know the reason for banning the advertisement of his products but the accused nos.3 and 4, Lalit Wahi and Vikash Wahi, did not listen his grievance, nor they disclosed any reason to suspend the advertisement of the medicines. The complainant-opposite party no.2 asked for the statement of the bills to the accused nos.3 and 4, Lalit Wahi and Vikash Wahi, since April, 2003 to July, 2005 but they did not pay attention. Thereafter, the 4 complainant-opposite party no.2 submitted representation before the accused no.1, Deepak S. Raja (petitioner no.2) and accused no.2, Mrs. Annie Joseph (petitioner no.1) on 12.9.2005 asking them to submit necessary documents and the photo copies of the bills of the advertisement and the statement of the payment but they also did not provide the bills of dues, nor submitted any statement regarding the amount as paid by the complainant-opposite party no.2. The further case of the complainant-opposite party no.2 is that the accused persons only made advertisement of the medicines for Rs.9,85,965/-, whereas Rs.10,77,384/- was given to them for the advertisement. Thus, Rs.99,419/- is due against the accused persons. It is further alleged that the accused persons cunningly and dishonestly put embargo on the company of the complainant-opposite party no.2, so that his company will not be able to give a single advertisement in any newspaper throughout the India. As such, the accused persons have cheated the complainant-opposite party no.2 and also misappropriated his money advanced for advertisement and also harm the reputation of the 5 complainant-opposite party no.2. 3. On inquiry, under Section 202 of the Code of Criminal Procedure, the court of Sri Manoj Kumar No.2, Judicial Magistrate, First Class, Patna, summoned the four accused, named in the complaint petition, including the petitioners, finding prima facie case under Sections 406 and 420 of the Indian Penal Code through the impugned order dated 6.1.2006. 4. Learned counsel appearing on behalf of the petitioners submitted that on bare perusal of the averments of the complaint petition, the dispute appears to be of accounting in respect of the payment of money for advertisement and bills as charged in between the complainant-opposite party no.2 and the accused nos.3 and 4, Lalit Wahi and Vikash Wahi, which is of civil in nature. Moreover, the averments made in the complaint petition does not disclose any criminal offence against the petitioners as there is no allegation showing their involvement in money transaction by the complainant- opposite party no.2 to accused nos.3 and 4, Lalit Wahi and Vikash Wahi. Learned A.P.P. for the State submitted that the 6 learned Magistrate on perusal of the complaint petition, solemn affirmation of the complainant-opposite party no.2 and the statement of the witness as recorded in course of inquiry has rightly summoned the accused persons, named in the complaint petition, including the petitioners finding prima facie case under Sections 406 and 420 of the Indian Penal Code and there is no illegality in the impugned order. 5. It appears from the averments of the complaint petition that the complainant-opposite party no.2 had paid Rs.10,77,384/- since April, 2003 to 5.9.2005 under proper receipt to the accused nos.3 and 4, Lalit Wahi and Vikash Wahi , in the office of Advertising Agency, Goal Market, New Delhi, for the advertisement of the medicines of his Company, namely, HE-5000 and SHE-1000, who later on stopped the advertisement of the aforesaid medicines. According to the complainant-opposite party no.2, the accused only made advertisement of Rs.9,85,965/-, while he had deposited Rs.10,77,384/- for the advertisement of the medicines. Though Rs.99,429/- was due upon the accused but despite of that the 7 accused have stopped to make advertisement of the medicines in the newspaper. 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 dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or 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 willfully 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 8 omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” 7. On bare perusal of the aforesaid provisions, 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 inducing any person to deliver any property. 8. From the complaint petition, it appears that the dispute appears to be of accounting, as the complainant-opposite party no.2 has claimed to pay Rs.10,77,384/- to the accused nos.3 and 4, namely, Lalit Wahi and Vikash Wahi for the advertisement of medicines of HE-5000 and SHE-1000 and according to him, the cost incurred for advertisement in the news paper comes to Rs.9,85,965/- only. As such, the dispute 9 appears to be of civil in nature. Moreover, if the allegation as made in the complaint petition is taken at its face value and accepted to be true in its entirety, the same do not constitute the offence under Sections 406 and 420 of the Indian Penal Code against the petitioners. As such, summoning the accused- petitioners for the offence under Sections 406 and 420 of the Indian Penal Code through the impugned order dated 6.1.2006 appears to be an abuse of the process of the court. 9. Accordingly, the impugned order dated 6.1.2006 passed by the court of Sri Manoj Kumar No.2, Judicial Magistrate, First Class, Patna, in Complaint Case No.2854(C) of 2005, with respect to the petitioners, is hereby quashed and the application is allowed. P.S./A.F.R. (Rajendra Kumar Mishra, J)