IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37909 of 2007 JAGDISH PRASAD KESHRI alias Jagdeo Prasad Keshri, S/o Late Muni Lal Keshri, R/o Maheshkhut, District Khagaria ………. Petitioner Versus 1. STATE OF BIHAR 2. The Associated Cement Companies Ltd. …. Opp. Parties ----------- For the Petitioner : M/s S.D.Sanjay & Gautam Kejriwal, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : Mr. Gaurang Chaterjee, Advocate ------ 3 10.12.2008 The petitioner who has been impleaded as one of the two accused in Complaint Case No. 1846(C) of 2002 is aggrieved by and has prayed for quashing of order dated 12.7.2005 passed by Sri P.C. Anal, Judicial Magistrate, 1st Class, Patna, whereby he has taken cognizance under section 406 I.P.C. against both the accused including the petitioner. The prosecution case is based on the complaint petition filed by M/s Associated Cement Company Limited (hereinafter referred to as “the Company”) impleaded herein as O.P. No. 2 engaged in manufacture and marketing of Cement through a network of its dealers in the State of Bihar. It is said that the accused approached the complainant at its Patna office for becoming dealer of the Company at Maheshkhuut in the District of Khagaria and he was accordingly appointed dealer for Maheshkhut in the year 1984, which was subsequently renewed in the year 1995 and the accused continued his business in the name and style of M/s Keshri Cement Bhandar, accused no. 1, since the date of appointment as Company’s - 2 - dealer after signing the dealership agreement. It is alleged that although under the terms of dealership the accused was to receive cement on payment of 100 % advance to the C & F Agent but on request the Company supplied him cement on credit on assurance that he would keep on making payments. It is further alleged that the accused received huge amount of cement on credit and after sometime stopped transaction and also stopped payment of dues and on approach made by the representative of the Company he made a request to adjust the security deposit and after adjustment of security deposit a sum of Rs. 1,67,311/- still stands due against the accused towards the credit supply of cement made to the accused. It has been submitted on behalf of the petitioner that the ingredient of section 406 I.P.C. i.e. the offence of “entrustment” is not made out against the petitioner from the recital made in the complaint petition or from the evidence led at the inquiry under section 202 Cr.P.C. and the taking of cognizance under section 406 I.P.C. is an abuse of the process of the Court. In this connection it was submitted that it would be evident from a perusal of the complaint petition that no prima facie case appears to have been made out against the petitioners much less a criminal liability or any inducement to commit the offence of criminal breach of trust. As a matter of fact, according to the learned counsel for the petitioner, the entire transaction is of civil nature and character as it involves a mere contractual issue which could have been agitated before a Court of competent civil - 3 - jurisdiction and the present criminal proceeding was an abuse of the process of the Court. With reference to the case of Punjab National Bank Vs. Surendra Pd. Sinha reported in 1993 Supp (1) SCC 499 it was submitted that action in terms of the contract extremely or implied is a negation of criminal breach of trust defined in section 405 I.P.C. and punishable under section 409 I.P.C. and it was neither dishonest nor misappropriation. Mr. Chaterjee, the learned counsel for the complainant – O.P. No. 2 was not in position to controvert the submission advanced by the learned counsel for the petitioner. However, he made a vane attempt to bring the alleged act of the petitioner under the ambit of an offence under section 406 I.P.C. I am fully satisfied that the complainant does not make out any case, much less a prima facie case, of the commission of an offence under section 406 I.P.C. I am of the opinion that the dispute relates to a presumed breach of contract and, therefore, admittedly is civil in nature. Therefore, to continue a criminal proceeding in respect of cases of civil nature would amount to be abuse of the process of Court. Accordingly the impugned order taking cognizance is hereby quashed and the application is allowed. Spd/- (Abhijit Sinha, J.)