IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38194 of 2009 GAYATRI SINHA . Versus STATE OF BIHAR & ANR . with Cr.Misc. No.5531 of 2010 DR.DHANANJAY KUMAR & ORS . Versus THE STATE OF BIHAR & ANR . ----------- 5/ 09/04/2010 Heard learned counsel for the petitioners and learned counsel for the State as also for O.P. No.2 who has entered appearance in both the applications. The petitioners are aggrieved by the order of cognizance dated 21.7.2008 in Complaint Case No.1236(C)/07/T.R. No.2013/07 passed by the Judicial Magistrate, 1st Class, Danapur under Sections- 406, 420, 120B and 418 of Indian Penal Code. Learned counsel for the petitioners submits that the O.P. No.2 had taken a loan of Rs.3.6 lacks for his jewelry business from the petitioner in Cr. Misc. No.5531/10. He defaulted in repayment of the loan and for which the petitioner therein has filed Complaint Case No.456-C/09 under Sections- 406, 420 and 120B of Indian Penal Code and in which cognizance has been taken and O.P. No.2 has appeared and is facing the trial. Learned counsel for O.P. No.2 has filed a show cause. In paragraph-12 it specifically admits the loan, 2 but the O.P. No.2 based on a hand-written note as Annexure-A claims to have repaid the loan contrary to the allegations in Complaint Case No.456-C/09. Learned counsel for O.P. No.2 thus submits that the complaint case filed by him was earlier in time and, therefore, the subsequent complaint against him cannot lead to a conclusion of false implication for vendetta. The allegations in the present complaint are that both the petitioners came to the jewelry shop of the O.P. No.2 on 22.11.2007. The petitioner in Cr. Misc. No.5531/10 was well known to the complainant and he introduced the petitioner in Cr. Misc. No.38194/09 as the prospective purchaser. One of the parties being known to the complainant from before he voluntarily handed over jewelry valued at Rs.2,19,437.00 sanguine that payment would come. When despite his repeated requests payment was not forthcoming he realized that he had been duped. Learned counsel for the petitioners submits that reading the allegations as they are, at best it makes out a case for a sale on credit, payment for which as promised was not forthcoming when the property in the goods had been handed over voluntarily to the petitioners. There is no allegation in the complaint 3 whatsoever that the petitioners had any alleged dishonest intention from the very inception not to make payment. He therefore submits that the complaint case did not disclose any offence under Sections- 406, 420, 120B or 418 of Indian Penal Code. If the O.P. No.2 handed over the goods voluntarily, without any inducement or allegation of dishonest intention from the very inception against the petitioners, the property in goods passed to them in absence of any restrictions under an agreement of conditions imposed while handing it over that the property in the jewelry shall remain with O.P. No.2 till payment was received. If the jewelry became the property of the petitioner in Cr. Misc.38194/09, it is difficult to understand how Section-406 of Indian Penal Code shall have application. The offence of criminal breach of trust will arise when the property in the goods remained with O.P. No.2. On the face of the allegations Section- 406 of Indian Penal Code shall have no application against the petitioner Dr. Dhananjay Kumar also. Insofar as Sections-418 and 420 of Indian Penal Code are concerned, this Court has already held that there are no allegations in the complaint whatsoever of the O.P. No.2 being duped by a dishonest intention on the 4 part of the petitioners from the very inception not to make the payment. This Court is therefore satisfied that the allegations read as they are at best make out a money claim for goods supplied on credit. This Court further finds substance in the submission on behalf of the petitioners that the complaint case was filed basically to pre-empt the filing of any prosecution by Dr. Dhananjay Kumar against O.P. No.2 when it stands admitted that O.P. No.2 had taken a loan from him and aware that there was a dispute with regard to repayment of the same. It stands to reason that the O.P. No.2 as a prudent businessman would part with jewelry of such high value without any payment/part payment or documentary proof of sale. These are factors which cast serious doubts on the allegations. In the entirety of the facts and circumstances of the case, this Court is prima facie satisfied that the allegations made out in the complaint on the face of it do not disclose a criminal cause of action. That it has been filed to pre-empt the filing of any prosecution by Dr. Dhananjay Kumar satisfies this Court that the present complaint case is in gross abuse of the process of law for both reasons and cannot be permitted to 5 continue. The entire proceeding in Complaint Case No.1236(C)/07/T.R. No.2013/07 pending in the court of Judicial Magistrate, 1st Class, Danapur against both the petitioners is hereby quashed. The applications stand allowed. KC/ ( Navin Sinha, J.)