IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24294 of 2008 SHALIM SULEMAN SHAIKH, SON OF DR. SULEMAN SHAIKH, MANAGING DIRECTOR.BIOGENICS (I) LTD., RESIDENT OF SECOND FLOOR OF TRISHUL APARTMENT. KANE ROAD, BANDRA BAND STAND NEAR SANT MARRY CHURCH, BANDRA (WEST), P.W. TOWN, BANDRA (WEST), MUMBAI. ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. SRI B.K. BHUTANI, PARTNER, KUMAR ENTERPRISES, JAINITH HOUSE, S.P. VERMA ROAD, PATNA AND AT PRESENT CEAT COMPOUND, SUPRABHAT BUILDING, EXHIBITION ROAD, PATNA. ----- OPPOSITE PARTIES For the petitioner :- Mr. Keshav Srivastava, Sr. Advocate Mr. Gaurav Gobind, Advocate For the Complainant:- Mr. Suraj Samdarshi, Advocate Mr. Rajiv Kumar Singh, Advocate] For the State :- Mr. Ajay Kumar Sinha, Advocate ----------- 3 30.10.2009 This application has been filed against the order 21.11.2007 passed by the Judicial Magistrate, 1st Class, Patna whereby the Judicial Magistrate, 1st Class, Patna has taken cognizance in Complaint Case No. 3043(C) of 2007 under Sections 406 and 420 of the Indian Penal Code. The opposite party no. 2 was appointed by the petitioner as a Distributor for the State of Bihar by an agreement dated 12.5.1993. The complaint of the opposite party no. 2 is that the complainant had deposited Rs. 8 lacs by cheque and draft to the accused as advance. The complainant states that medicine was sent to him to be distributed out the State of Bihar. In the mean time, the petitioner’s company closed down. The complainant by several letters made a demand of his dues amount to Rs. 9,34,593/- which was not paid to him. It has also been stated that the petitioner paid 1,50,000/- and assured the complainant that he would pay the rest in installments of 15,000/- per month in order to fulfill the dues of the complainant. 2 Learned counsel for the petitioner submits that this case is essentially related to a civil dispute and no offence under Section 420 or 406 of the Indian Penal Code is made out against the petitioner. It has been argued that non payment or under payment of the price of the medicines/goods in itself does not constitute an offence which would come within the purview of criminal breach of trust or cheating. It is further submitted that the agreement between the parties was contractual in nature and the proper remedy for the petitioner is to file a suit. Section 405 which defines criminal breach which reads as follows: 405. Criminal breach of trust.- Whoever, being 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 willfully suffers any other person so to do, commits “criminal breach of trust”. In this case the facts reveal that there was no entrustment or misappropriation of money. It is submitted that the contents of the complaint application do not fulfill the ingredients under Section 405 of the Indian Penal Code. Referring to Section 415 which defines the offence of cheating. It is necessary to show that the accused had a fraudulent or dishonest intention at the time of making the promise with the intention to retain the property. This Court finds that the complaint 3 petition does not contain the ingredients which would make out an offence under Section 420 of the Indian Penal Code. The Apex Court as well as this High Court in several decisions has held that there must be a dishonest intention to cheat or to make a false representation to constitute an offence of cheating mere breach of a contractual obligation would not amount to an offence of cheating or criminal misappropriation. For the proposition aforesaid reference may be made to the judgments reported in the cases of Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. reported in 2009 (4) PLJR 26(SC). Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr. reported in (2007) 7 SCC 373 and Ashok Kumar Lakhaiyar & Anr. Vs. The State of Bihar & Anr. reported in 2005 (2) PLJR 607. Considering the aforesaid facts and the law laid down with respect to non fulfillment of contractual obligation, this Court quashes the order taking cognizance dated 21.11.2007. passed in Complaint Case No. 3043(C) of 2007. This application is allowed. Sanjay (Sheema Ali Khan, J.)