IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40089 of 2007 JITENDER MAGOON & ORS Versus STATE OF BIHAR ----------- For the petitioners : Mr. Syed Asghar Najmi, Adv. For the State : Mr.Jharkhandi Upadhyay, A.P.P. For Opp.Party No.2 : Mr.Ranjeet Kumar , Adv. _______ O R D E R Through this application under Section-482 Cr.P.C. the three petitioners have prayed for the quashing of the entire complaint case , bearing Complaint Case no.1012 (C) of 2007 including the order dated 28.6.2007 passed therein by Sri Shahab Kausar, Judicial Magistrate, Ist Class,Patna whereby and whereunder he has taken cognizance against the petitioners under Sections-418,403,120B I.P.C. The Complainant, a Proprietorship Firm carrying on business in the name and style of “M/S Lall Surgi Co.” of supply/ marketing of surgical articles ( herein after referred to as “the Complainant Firm”) through its Attorney holder, Asit Kumar Lall, filed the aforesaid complaint ,inter alia , alleging that the Firm had paid a sum of Rs.6,06,000/- through two bank drafts to M/S Lifelong Meditech Ltd.( herein after referred to as “the Company”), along with a cheque of Rs.2 lacs and a blank cheque whereafter an agreement was signed between the two appointing the Complainant Firm as consignor agent on mutual agreed terms for a period of three years for the sale of Company’s surgical products. Five road permits were - 2 - also handed over to the Company by the Complainant Firm. It is further alleged that in keeping with the agreement one consignment was delivered to the Firm but the two other consignments making use of the road permits furnished by the Complainant Firm were used by the Company for delivering goods to another Company. A legal notice sent by the Complainant Firm for return of the road permits, the two blank cheques and security money evinced no interest. It appears that at the enquiry the complainant on a court question admitted that the Company had supplied the Complainant Firm goods worth Rs.6,06,000/- but till today the Company had not returned the two road permits and one blank cheque and instead had cancelled the agreement by playing fraud and it was only , therefore, that the complaint had been filed. It further appears that the learned Magistrate while holding that no case under Sections-420,406,464,469 and 505 I.P.C. had been made out against the petitioners, however, took cognizance , as stated above, under Sections-418,403,120B I.P.C. and issued summons. It has been submitted by the learned counsel for the petitioners that from the recital in the complaint as also evidence adduced at the enquiry, it would be apparent that the dispute between the parties was purely of civil nature arising out of contractual relationship relating to commercial transaction and no case had been made out to proceed against them on the criminal side. Before examining the respective contentions on their merits - 3 - it would be appropriate to notice the legal position. 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. 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. Admittedly, in the instant case, it is not denied by the Complainant Firm that he had not been supplied with goods worth Rs.6, 06,000/- which was more than equivalent of the amount deposited with the Company through the two Bank Drafts. The only grievance is that the road permits, blank cheque and security money had not been received. The amount of Rs.6 lacs was by way of security money and goods above that amount had already been supplied to the Complainant Firm. Obviously, there could be no question of the Company having cheated the Complainant Firm. Similarly, the offence under Sections-403 and 120B I.P.C. also do not appear to have been made out. Cautioning against issuing of process so that it should not be an instrument in the hands of the private complainant as vendetta to harass the person needlessly , the Apex Court in the case of Punjab National Bank & Ors.-Vrs.Surendra Prasad Sinha, reported in 1993 Supp. (1) SCC,499 observed in paragraph-6 : - 4 - “It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment ---------. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the courts would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.” Having given my anxious thoughts to the matters in issue, I am of the opinion that Opp. Party no.2 has abused the process of Court and laid complaint against the petitioners without any prima facie case being made out. The learned Magistrate in my view having regard to the facts stated above and the legal position committed a serious error in issuing the process against the petitioners when the acts alleged against them did not constitute those offences satisfying their ingredients even prima facie. Due regard being had to the facts and circumstances of the case, the prosecution of the petitioners amounts to an abuse of the process of the Court. Accordingly, the entire criminal prosecution - 5 - arising out of Complaint Case No.1012(C)/2007 is hereby quashed and the application is allowed. ( Abhijit Sinha, J) Patna High Court, Patna Dated : The 18th July,2008 Nawal Kishore Singh/ A.F.R.