IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.31966 OF 2008 RAKESH KUMAR, PROPRIETOR OF M/S HOT LINE PAY PHONE SERVICE, SON OF SHRI RANJAN PRASAD, RESIDENT OF WARD NO. 8, NAGAR PANCHAYAT DALSINGSARAI, POLICE STATION DALSINGSARAI, DISTRICT SAMASTIPUR VERSUS STATE OF BIHAR & ANR ********* 2 29/06/2011 The allegation in the First Information Report arising out of Dalsingsarai Police Station Case no. 88 of 2007, in short, is that the petitioner who is the dealer of mobile phones had persuaded the informant to buy a phone. Later on, it was found that the phone was not properly working and he asked to replace the phone. The petitioner refused to do so which has led to filing of the present case. Learned Counsel for the petitioner submits tht no offence is made out under Section 406 and 420 of the Indian Penal Code. As far as the allegation of criminal breach of trust is concerned, it requires that (a) a person should be entrusted with a property; (b) that the person so entrusted, dishonestly misappropriates that property or converts that property to his own use; or dishonestly dispose of that property; or instigates the other persons to dispose of that property which he could not have otherwise done. In the present case, the allegation indicates that there is no case of misappropriation. 2 As far as the allegation of cheating is concerned, it envisages that a person should deliberately deceive any other person to do or deliver any property or do such an act which he would not have otherwise done. In the present case, the ingredients of Sections 406 and 420 of the Indian Penal Code are not attracted. If there was a defect in the mobile phone, then the petitioner could not be held responsible because only the Nokia Company would be responsible for any such manufacturing defect. In the circumstances, this Court finds that no case is made out under Section 406 and 420 of the Indian Penal Code. Accordingly, the order dated 04.03.2008 passed in Dalsingsarai Police Station Case no. 88 of 2007 passed by the Chief Judicial Magistrate, Dalsingsarai is hereby quashed. This application is allowed. Anand ( Sheema Ali Khan, J. )