IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.39317 of 2005 LAV KUMAR SINHA, Son of Late Krit Narayan Lal, resident of Mohalla- Salimpur Ahra, Lane No.2, In front of house of Shambhunath Verma, Police Station- Gandhi Maidan, Post Office Kadamkuan, Patna-800 003, Town and district- Patna, State Bihar. . . . . Accused. . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. Shri Jagdish Prasad Agrawal (the informant), C/o M/s Kusum Bearing Company, 114-A, Ashoka Palace, First Floor, Exhibition Road, Police Station- Gandhi Maidan, Patna 800 001, Town and district- Patna. . . . . . Informant. . . . . Opposite parties. For the Petitioner : Shyam Kishore Sinha, Advocate For the State : Smt. Indu Bala Pandey, A.P.P. ----------- 8/ 22.03.2010 Heard learned counsel for the petitioner and the State. The petitioner prays for setting aside the order dated 26.03.2004 as well as order dated 02.09.2005 in Gandhi Maidan P.S. case no. 285 of 2003 by which cognizance of offence under Section 406 of I.P.C. and petition for discharge filed under Section 239 of Cr.P.C. have been rejected. Despite notice no one appears on behalf of opposite party no.2. The informant alleged that he runs a company known as M/s Kusum Bearing Company situated at Exhibition Road, Patna. The informant has his head office at Kolkata and Branch Office at Patna. The informant alleged that accused / petitioner collected a sum of Rs.1,10,000/- from a party of Lakhisarai without his prior permission. The informant alleges that despite assurance, the petitioner has not given back the aforesaid amount to him. Learned counsel submits that the prosecution case does not disclose the name of the person from whom the petitioner had received the money. He further submits that the dispute if any would - 2 - be as a civil dispute. He further submits that there is no entrustment of money and as such the element of breach of trust does not come in the brief. Learned counsel submits that even assuming the prosecution case to be true, no case would be made out against the petitioner. In support of his submission, learned counsel has relied upon decision in the case of State of Haryana & Others Vs. Bhajan Lal & others reported in 1992 Supp (1) SCC 335. He also relied upon a decision in case of Smt. Fulwanti Agrawal and Ors Vs. Sri Naresh Kumar & Another reported in 2000 Cr.L.J. 3236 and in case of Madhavrao Jiwaji Rao Scindia & Ano. Vs. Shambhajirao Chandrojirao Angre & Ors reported in AIR 1988 SC 709. In the case of State of Haryana & Others Vs. Bhajan Lal & others as well as in the case of Madhavrao Jiwaji Rao Scindia & Ano. Vs. Shambhajirao Chandrojirao Angre & Ors (Supra), the Hon’ble Apex Court held that if the offences do not disclose a prima face case, the prosecution can be quashed. The Hon’ble Apex Court further observed that special features in the cases can be taken into consideration. In the case of Smt. Fulwanti Agrawal and Ors Vs. Sri Naresh Kumar & Another (Supra) the allegation was that accused cheated and denied complainant the profits. The Hon’ble Karnataka High Court quashed the prosecution holding that no case under Section 504, 506 of the I.P.C. would be made out. In the instant case, the petitioner was working in the Patna Office as Manager, Marketing. The allegation is that he received a sum of Rs. 1,10,000/- from one of the parties of Lakhisarai. He did not - 3 - remit the money despite making assurance to do so. I find that the fact of the instant case is very different than that of the other cases referred to by the learned counsel for the petitioner. The Hon’ble Apex Court in the case of State of M.P. Vs. Awadh Kishore Gupta & Others reported in (2004) 1 SCC 691, as well as the Division Bench decision of this Court in the case The Oriental Insurance Company Ltd. & Ors. Vs. The State of Bihar & Another reported in 2004 (2) PLJR 458 have held that the court at these stages has merely to see whether there is a prima facie material and sufficient evidence to proceed against the accused persons. Again the Hon’ble Apex Court in the case of N. Devindrappa Vs. State of Karnataka reported in (2007) 5 SCC 228 observed that a particular act can entail both civil and criminal liability. In this view of the matter, I do not find any infirmity in the impugned order taking cognizance or the order dated 02.09.2005 rejecting the petition of discharge. However, if parties file a petition for compromise, the learned court below will consider this aspect and will dispose of the same accordingly. With the aforesaid observation, this application is disposed of. Uday/ (Samarendra Pratap Singh, J.)