IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.45037 of 2008 1. Ramesh Prasad, son of Late Sidheshwar Sharma. 2. Prem Ranjan @ Pintu, son of Ramesh Prasad. 3. Archana Dolly, wife of Sanjay Kumar. All are residents of Flat No.G-10, Emerat Kohinoor Apartment, Near Road No.36, Chitkorha, P.S. Gardanibagh, District-Patna. ………………………………………………...Petitioners. Versus 1. The State Of Bihar. 2. Shambhu Prasad, son of Kapildeo Prasad, Resident of Flat No.T-9, Emerat Kohinoor Apartment, Road No.36, Chitkohra, P.S. Gardanibagh, District-Patna. ………………………………………Opposite Parties. ---------------------------------- For the Petitioners : M/s. Sandeep Kumar & Mukesh, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mr. N.K. Agrawal, Sr. Advocate. ----------------------------- O R D E R 7. 13.09.2011. The petitioners have filed this application, under Section 482 of the Code of Criminal Procedure, for quashing the order dated 5.8.2008 passed in Complaint Case No.1563(C) of 2008 on inquiry by the court of Sri Deepak Kumar Singh, Judicial Magistrate, Ist Class, Patna, summoning the accused-petitioners finding prima facie case under Sections 406 of the Indian Penal Code and Section 2 138 of the Negotiable Instruments Act, 1881. 2. The complainant-opposite party no.2, Shambhu Prasad, filed the complaint petition, numbered as Complaint Case No.1563(C) of 2008, in the court of the Chief Judicial Magistrate, Patna. 3. In brief, the case of the complainant-opposite party no.2 is that the complainant is a businessman and is residing in Flat No.T-9, Emerat Kohineer Apartment, Chitkorha, P.S. Gardanibagh, District-Patna. The accused- petitioners, Ramesh Prasad, Prem Ranjan alias Pintu and Archana Dolly and the accused, Sanjay Kumar, are also residing in the same apartment in Flat No.G-10. The complainant-opposite party no.2 had cordial relations with the accused Sanjay Kumar and the accused-petitioners. In the first week of November, 2007, the accused, Sanjay Kumar and his father, Ramesh Prasad, the accused- petitioner no.1, visited at his residence and asked for some financial help but the complainant-opposite party did not ready. Again, the accused, Sanjay Kumar, Ramesh Prasad (petitioner no.1) and Archana Dolly (petitioner no.3) met with the complainant-opposite party no.2 and showed their urgency for money. At that time, the accused-petitioner 3 no.1, Ramesh Prasad, also assured him for repayment. Accordingly, the complainant-opposite party no.2 gave Rs.2,50,000/- to accused-petitioner no.1, Ramesh Prasad. The accused-petitioners no.2 and 3 counted the currency notes and at that time the accused-petitioner no.1 instructed the accused, Sanjay Kumar to hand over the cheques of the entire amount for repayment. The accused, Sanjay Kumar, in presence of the accused-petitioners signed the cheques and handed over the same to the complainant-opposite party no.2. At that time, the accused-petitioners assured about the encashment of the three cheques on dates as mentioned therein. The complainant-opposite party no.2 presented the cheques in his account in the State Bank of India, S.K. Puri Branch, Patna, but all the cheques were returned due to insufficient of fund. The complainant-opposite party no.2 informed the accused persons for the same but they did not pay any heed for refund of the amount. Then the complainant-opposite party no.2 sent the legal notice to the accused persons but they did not receive the notice. However, the accused- petitioner no.1, Ramesh Prasad, replied the notice disclosing facts of concocted story. As such, all the 4 accused-petitioners and the accused, Sanjay Kumar in collusion with each other cheated the complainant-opposite party no.2 and misappropriated the money Rs.2,50,000/- of the complainant-opposite party no.2. 4. Learned counsel appearing on behalf of the petitioners submits that the accused, Sanjay Kumar, had taken the loan from the complainant-opposite party no.2 and he had also issued the cheuqes for repayment which are said to be dishonoured but with malafide intention and only to harass the accused-petitioners, who are father, brother and wife of the accused Sanjay Kumar, the complainant- opposite party no.2 has filed this false complaint case. Learned counsel for the petitioners further submits that the accused, Sanjay Kumar, is missing since 27.3.2008, for which the information has been given to the police vide Annexure-„3‟ to this application, so the opposite party no.2 has implicated the petitioners also only to give undue pressure. Learned counsel for the petitioners also submits that the allegations, as made in the complaint petition, do not disclose the prima facie case constituting the offence under Section 406 of the Indian Penal Code and Section 138 of the N.I. Act against the accused-petitioners but the 5 learned Magistrate without considering the same illegally summoned the accused-petitioners also through the impugned order, which amounts to the abuse of the process of the court. 5. The complaint petition discloses that the complainant-opposite party no.2 had advanced an accommodation loan of Rs.2,50,000/- on the request of the accused, Sanjay Kumar and his father, accused-petitioner no.1, Ramesh Prasad and for repayment the cheques were signed by the accused, Sanjay Kumar in favour of the complainant-opposite party no.2, which were dishonoured due to insufficient fund in the account of the accused, Sanjay Kumar. Section 406 of the Indian Penal Code relates to the punishment for criminal breach of trust and the criminal breach of trust is defined under Section 405 of the Indian Penal Code. Section 138 of the N.I. Act relates to dishonour of cheque for insufficiency, etc., of funds in the account. The provisions of Sections 405, 406 of the Indian Penal Code and Section 138 of the N.I. Act are read as under: “405. Criminal breach of trust.- Whoever, being 6 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 wilfully suffers any other person so to do, commits “criminal breach of trust”. 406. Punishment for criminal breach of trust.- whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 138. Dishonour of cheque for insufficiency, etc, of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to [two] year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section 7 shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.” For the offence of criminal breach of trust, there should be entrustment of the property to a person and the person entrusted should dishonestly misappropriate or convert that property to his own use. It is specifically stated by the complainant-opposite party no.2 in the complaint petition that he had advanced an accommodation loan, hence, there is no question of entrustment of the property nor breach of trust. The provision of Section 138 of the N.I. 8 Act clearly indicates that if a cheque issued by a person is dishonoured by the bank due to insufficient or lack of amount in the account of a person issuing the cheque, that person will be liable for punishment. The facts of the complaint petition disclose that the cheques had been issued by the accused, Sanjay Kumar and not by the petitioners. 6. From the reading of the averments of the complaint petition in their entirety and accepting the allegations to be true, the ingredients as required for the offence of criminal breach of trust under Section 406 of the Indian Penal Code are lacking. As far as the offence under Section 138 of the Indian Penal Code is concerned, there is specific case of the complainant-opposite party no.2 in the complaint petition that the cheques have been issued by the accused, Sanjay Kumar and not by the petitioners. 7. In the facts and the circumstances of the case, no prima facie case for the offence under Section 406 of the Indian Penal Code and Section 138 of the N.I. Act are made out against the accused-petitioners. As such, the impugned order dated 5.8.2008 passed by Sri Deepak Kumar Singh, Judicial Magistrate, Ist Class, Patna, in Complaint Case No.1563(C) of 2008, summoning the accused-petitioners, 9 appears to be abuse of the process of the court. 8. In the result, this application is allowed and impugned order is hereby quashed. P.S. (Rajendra Kumar Mishra, J)