IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.28191 of 2008 Sanjay Kumar Sinha @ Sanjay Sinha, son of Shri Mahendra Prasad, resident of G-6, Indra Apartment, Dimna Road, Mango, At and District-Jamshedpur (Jharkhand). ……………………………………………………Petitioner. Versus 1. The State Of Bihar. 2. Mr. Shashi Bhusan Prasad, son of Late Chandrika Prasad, Partner of Star India Agency, 210, Adharshila Complex, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. ………………………………………Opposite Parties. ---------------------------------- For the Petitioner : Mr. Anjani Kumar Sinha, No.1, Advocate. For the State : Mr. Dashrath Mehta, A.P.P. For the O.P. No.2 : M/s. R. J. Maharaj and Madan Mohan Prasad, Advocates. -------------------------------------- O R D E R 7. 13.12.2011. The petitioner, through this application, has invoked inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 29.7.2005 passed by the court of Sri Premchand Anal, Judicial Magistrate, First Class, Patna, in Complaint Case No.2407(C) of 2004, summoning the accused, named in the complaint petition, including the petitioner, under Section 204 of the Code of 2 Criminal Procedure, on inquiry, finding prima facie case under Section 406 of the Indian Penal Code. 2. In brief, the facts, leading to this application, are that the complainant-opposite party no.2, Mr. Shashi Bhusan Prasad, Partner of Star India Agency, 210, Adharshila Complex, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna, filed the complaint petition, numbered as Complaint Case No.2407 (C) of 2004, with the contention that the case arise out of an agreement arrived at between his Firm, Star India Agency and the Company, accused no.1, Kinetic Elevators Limited, 58- F, Hindustan Park, Kolkata, appointing the Firm, Star India Agency, as liaison agent for the District of Patna, to deal with lift produced by the said Company, accused no.1, Kinetic Elevators Limited, vide agreement dated 21.5.1999, executed under their joint signatures. According to the terms and conditions of the agreement, the Firm, Star India Agency, labour hard for occupation in the market and in due course managed 141 orders, the commission of which comes to Rs.64,00,693/- but till date the Agency had received Rs.1,73,000/- in several installments. Since the relation in between the Agency and the Company was cordial, therefore, the Firm, Star India Agency, never bothered to verify the 3 detailed of payment receipts, rather to maintain further good relation in future also, the Agency had opened the local office at Patna as desired by the Company, accused no.1, Kinetic Elevators Limited, engaging 4-5 staffs for better coordination. It is further alleged that all of a sudden, the Firm, Star India Agency, received the letter dated 22.11.2001 of the Company, accused no.1, Kinetic Elevators Limited, terminating the operation of agreement after violating the terms and conditions of the agreement dated 21.5.1999. While the Firm, Star India Agency, wanted to revive all the relations and settle the commission dispute with the Company, accused no1, Kinetic Elevators Limited, but after awaiting a long to settle the commission dispute by the Company, accused no.1, Kinetic Elevators Limited, the Agency, ultimately, sent a legal notice dated 22.5.2003 clarifying all the terms and conditions of the agreement and non cooperating and non coordinative attitude played by the Company, accused no.1, Kinetic Elevators Limited, and its management at its head office but all in vain. As such, it is quite apparent that the intention of the Company, accused no.1, Kinetic Elevators Limited, is to defraud the complainant-opposite party no.2 and to grab Rs.4,66,960/-. The further case of the complainant-opposite party no.2, is that on 4 29.9.2004, he approached all the accused and asked to make payment of his due commissioned amount but they refused to pay the same with dishonest intention. 3. After filing of the complaint petition by the complainant-opposite party no.2, on inquiry, the court of Sri Premchand Anal, Judicial Magistrate, First Class, Patna, on perusal of the complaint petition, solemn affirmation of the complainant-opposite party no.2 and the statements of the witnesses, as recorded in course of inquiry, summoned the accused, named in the complaint petition, including the petitioner, finding prima facie case under Section 406 of the Indian Penal Code. 4. Learned counsel appearing on behalf of the petitioner submitted that from perusal of the complaint petition, it would appear that no specific averment has been made against the petitioner to constitute the offence under Section 406 of the Indian Penal Code. In fact, at the relevant time, the petitioner was employee of the Company, accused no.1, Kinetic Elevators Limited and was posted as Area Manager at its Patna Branch for the work of State of Bihar and Jharkhand and the agreement, as detailed in the complaint petition, entered in between the firm of the complainant-opposite party no.2 and the Company, accused 5 no1., Kinetic Elevators Limited, and the petitioner was not the party therein. The agreement was executed in between the General Manager of the Company, accused no.1, Kinetic Elevators Limited, who is accused no.2 in the complaint petition and the complainant-opposite party no.2, who is said to be one of the partners of the Firm, Star India Agency, which would appear from Annexure-„2‟ to the supplementary counter affidavit filed on behalf of the complainant-opposite party no.2. The complainant-opposite party no.2, after terminating the Agency by the Company, accused no.1, Kinetic Elevators Limited, as communicated by the accused no.2, General Manager of the said Company, Kinetic Elevators Limited, accused no.1, has filed the complaint petition against the accused including the petitioner while the petitioner was no where in execution of the agreement and termination of the operation of the agreement. On the other hand, learned counsel appearing on behalf of the complainant-opposite party no.2, made submission that the learned Judicial Magistrate on perusal of the complaint petition, solemn affirmation of the complainant-opposite party no.2 and the statements of the witnesses, as examined in course of inquiry, has rightly summoned the accused including the 6 petitioner finding prima facie case under Section 406 of the Indian Penal Code. 5. On going through the complaint petition, which is Annexure-„1‟ to this application, at a glance, it appears that the allegation of the complainant-opposite party no.2, who is said to be one of the partners of the Firm, Star India Agency, entered into an agreement with the Company, accused no.1, Kinetic Elevators Limited, for agency of lift. According to the complainant-opposite party no.2, his Firm, secured 144 orders for installation of the lifts, the commission of which accrued to Rs.6400693/- but the Firm received only Rs.1,73,000/- and in the meantime, the Company, accused no.1, Kinetic Elevators Limited, terminated the operation of the agreement vide letter dated 22.11.2001. As such, Rs.4,66,960/- has been grabbed dishonestly by the Company, accused no.1, Kinetic Elevators Limited by committing forgery. Annexure-„1‟ to the supplementary counter affidavit filed on behalf of the complainant-opposite party no.2, is the letter dated 21.5.1999 of the Firm, Star India Agency, detailing the terms and conditions of the agreement, in response to the letter issued by the accused no.2, General Manager of the Company, accused no.1, Kinetic Elevators Limited. Annexure-„3‟ to this application is the letter 7 dated 22.11.2001, whereby by the Agency of the complainant- opposite party no.2 has been stopped by the Company, accused- petitioner no.1, Kinetic Elevators Limited, communicated through accused no.2, General Manager of the Company, accused no.1, Kinetic Elevators Limited addressed to the Firm, Star India Agency, of the complainant-opposite party no.2. 6. Section 406 of the Indian penal Code relates to punishment for criminal breach of trust which is defined in Section 405 of the Indian penal Code. Section 405 of the Indian Penal Code is read as under: “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.” On bare perusal of the aforesaid provision, it is clear that to constitute the offence under Section 406 of the Indian Penal Code, there should be entrustment of the property to a 8 person and the property should be dishonestly misappropriated or converted to his own use by that person or disposes of that property in violation of any direction of law prescribing the mode in which such trust is discharged. 7. From the complaint petition, the dispute appears to be of violation of agreement executed in business dealing, which is civil in nature. Moreover, if the allegation as made in the complaint petition is taken at its face value and accepted to be true in its entirety, the same do not constitute the offence under Section 406 of the Indian Penal Code against the petitioner. As such, summoning the petitioner for the offence under Section 406 of the Indian Penal Code through the impugned order dated 29.7.2005 appears to be an abuse of the process of the Court. 8. Under the aforesaid facts and circumstances, the impugned order dated 29.7.2005 passed by the court of Shri Premchand Anal, Judicial Magistrate, First Class, Patna, in Compalint Case No.2407(C) of 2004, with respect to the petitioner, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)