IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52435 of 2007 JANARDAN PRATAP SINGH, Son of Tumnath Singh, Resident of village Mahadah, P.S. Buxar(M), District Buxar …….. Petitioner Versus 1. STATE OF BIHAR 2. Sadanand Kushwaha, Son of Sudarshan Kushwaha, R/o village Koerpurwa, P.S. Buxar (T), District Buxar ……. Opp. Parties. ----------- For the petitioner : Mr. B.J.Ojha, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 :M/s Anjana Prakash, Sr. Advocate & Anil Kumar Singh, Advocate O R D E R The sole FIR named accused of Buxar (Town) P.S. Case No. 221 of 2006 has prayed for the quashing of the order dated 1.2.2007 passed therein by Sri R.K.Shukla, Judicial Magistrate, First Class, Buxar, whereby he has taken cognizance against the petitioner for commission of offence under section 406 IPC. The informant, one Sadanand Kushwaha, impleaded herein as O.P. No. 2, on 18.7.2006 submitted a written report alleging the commission of offence under section 406 IPC by the sole named accused. It is said that the informant and the accused were on visiting terms from before due to a friendly relationship having developed between them and exchange of loans frequently took place between them. It is alleged that on 2.1.2006 the accused came to the shop of the 2 informant and requested for a loan of Rs.50,000/- as he was short of that amount in purchasing the lands of one Chandrama Prasad Rai and assured to return the amount by 15.7.2006. The informant in good faith handed over a cheque bearing no. 00789 for Rs. 50,000/- drawn on Central Bank of India, Buxar, to the accused in the presence of the witnesses named in the written report and the said cheque was also got enchased by the accused. It is said that when the informant on 16.7.2006 went to the accused and requested for the return of the amount loaned to him as he had to reimburse the loan he had taken from Punjab National Bank, the accused refused stating that he had taken many such loans from many persons none of which he had returned and the informant was free to do whatever he liked. Assailing the impugned order taking cognizance, it was submitted that the petitioner is innocent and has been falsely implicated in this case as the informant carried a grudge against him arising of the fact that the petitioner had sold ½ katha of land to one Geeta Devi in January 2006 superceeding the claim of the informant to purchase the said land as the informant was not willing to pay the demanded price. It has further been stated that in view of the false implication the petitioner had written to the Superintendent of 3 Police, Buxar, stating therein that he had not taken any money from the informant and the signature on the cheque was not his and had been on the sly manipulated by the informant to implicate him falsely. The further submission of the learned counsel for the petitioner is that the falsity of the case would be apparent from the fact that the informant in respect of the same occurrence / transaction had filed earlier Complaint Case No. 221 (C) of 2006 which was dismissed on 3.5.2006 as neither the complainant nor his witnesses had presented themselves for examination. It is submitted that in the said complaint, the informant of the instant case, had taken the plea that the alleged cheque given to the accused was drawn on the Punjab National Bank. It was also submitted that from the averments in the written report and the materials available on record no case under section 406 IPC was made out as there had in fact been no entrustment of any property and even if the story as propounded by the informant is accepted at its face value, it would only amount to a civil dispute and he could not be fastened with any criminal liability. O.P. No. 2, the informant has appeared and has contested the case and although no show cause or counter 4 affidavit has been filed on his behalf the learned counsel for O.P. No. 2 has advanced oral submissions to justify the impugned order. In this connection it was submitted that the police after due investigation had submitted a charge sheet finding a prima facie case to have been made out against the petitioner and the learned Magistrate had no other option but to take cognizance on a careful consideration of the materials available on the records. It was also submitted that the accused from the very beginning brooked the evil intention of borrowing the money from the informant in order to misappropriate the same. This, in fact, according to the learned counsel, would be evident from the blatant declaration of the accused to the informant that he had taken many loans from many people none of which he had cared to return and challenging the informant to do whatever he wished to do. On this premise it was submitted that this was a clear case of breach of trust with mens rea and in the circumstances a criminal prosecution was very much justified. Admittedly, an offence of breach of trust entails dishonest misappropriation of property or any dominion over such property, belying the entrustment. Such attributes are germane to make out an offence of breach of trust. In S.W. Palanitkar vs. State of Bihar, reported in 5 2002(1) PLJR 247 (SC) it was observed that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. It was further observed that 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 court but a breach of trust with mens rea gives rise to a criminal prosecution as well. In the instant case whereas the informant alleges of the accused having received a cheque of Rs. 50,000/- by way of loan for purchasing lands of Chandrama Prasad Rai and of having enchased the said cheque, the specific stand of the accused is a denial of having received any cheque from the informant although he admits of having purchased lands from Chandrama by paying from the joint account of him and his wife with the Central Co-operative Bank Ltd., Arrah. On the contrary the accused has attempted to make out a defence of the informant manipulating matters to implicate him falsely and of having written to the Superintendent of Police in this regard but the result thereof has not been disclosed. The accused by referring to the complaint case filed by the informant earlier has attempted to make out the case of the informant not being certain about the cheque purportedly 6 issued in his favour for the reference therein is to Punjab National Bank and in the instant case it is the Central Bank of India. However, there is no denial on the part of the accused of his having stated before the informant that he had taken many loans from many people none of which he had returned. This clearly reveals the criminal intention of the accused. However, be that as it may, the respective stands taken by the parties make out a case of looking into disputed questions of facts which unfortunately is not possible in a proceeding under section 482 Cr.P.C. These issues may have to be proved by cogent evidence at the trial. For the reasons stated in the foregoing paragraphs I find no merit in this application which is accordingly dismissed. Patna High Court, Patna. Dated : The 29th of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)