JUDGEMENT 1. This Rule is directed against an order dated June 11, 1980 passed by Shri B. Banerjee, learned Metropolitan Magistrate, 17th Court, Calcutta framing charge under S.406 of the Penal Code against the accused-petitioner in cruise No. C/933/1979. 2. The petitioner's case seems to be that he is the owner of a truck. In June, 1975 he borrowed Rs. 20,000/- from M/s. Ganesh Narayan Brijlal Limited by mortgaging the said truck. The ownership of the truck remains with him. But certain papers were created showing that the petitioner was taking the truck on hire-purchase agreement from the said firm of financiers. In July, 1976 the truck met with a serious accident and it is lying in a Petrol Pump on the Jessors Road, Dum Dum. A claim was lodged by the firm of financiers through the petitioner as he happens to be the registered owner of the said vehicle. This claim was not ultimately pursued. 3. On the allegation that the petitioner did not pay the balance under the hirepurchase agreement the financiers filed a suit in the Original Side of this High Court and obtained an order whereby a Receiver was appointed in respect of the said truck. 4. Suppressing the above facts the financiers through one of their employees filed a petition of complaint in the court of the learned Chief Metropolitan Magistrate, Calcutta alleging that the petitioner had failed to pay Rs. 18,379/- towards hire-purchase and other dues and further that he had removed various valuable parts of the vehicle. On this complaint summons under S.406 of the Penal Code was issued on the petitioner. The petitioner examined 3 witnesses and in course of their exami they had to admit the facts as stated by the petitioner. In spite of that the learned Magistrate framed a charge under S.406 of the Penal Code against the petitioner and hence this revisionary application. 6. It is urged from the side of the petitioner that the whole dispute was civil in nature that no criminal liability was involved in this case and that the process of the criminal court was being sought to be abused here for putting pressure upon the petitioner. 7. 6. It is urged from the side of the petitioner that the whole dispute was civil in nature that no criminal liability was involved in this case and that the process of the criminal court was being sought to be abused here for putting pressure upon the petitioner. 7. It is urged from the side of the opposite party that the facts being what they are, the petitioner has made himself liable both under the civil and criminal laws and that as such the learned Magistrate made no mistake by drawing up the charge under S.406 of the Penal Code against him since the facts unmistakably show that the petitioner who had been entrusted with the truck had removed valuable parts therefrom. 8. The only question that arises for decision in this case is as to whether by doing allegedly what he has been accused of doing the petitioner has incurred criminal liability as contemplated under S.405 of the Penal Code. 9. Now, there cannot be any question that liability, if any, arising in the present case arose out of the breach of a contract to which the parties to the present proceeding were parties. The breach of such a contract gives rise to civil liability and not criminal lability. In this connection reference may be made to the decision in S. Mitter v. Stateas reported in (1957) 61 Cal WN 210. In this case, the hirer not only failed to pay the instalments but also failed to deliver back possession of the hired properties to the owner. The owner preferred a complaint charging the petitioner with having committed criminal breach of trust under S.406 of the Penal Code. The relevant portions of the judgment as reported in page 211 may be quoted below: - "Suffice it to say that the agreement of hire is, on the face of it a contract entered into between the parties evidencing an arrangement between them as respects hire of certain articles which hire was in the course of time to ripen into purchase ...... The fact remains that the accused-petitioner is treated as having certain rights, whatever these fights may have been, he was certainly entitled to keep and possess the articles which were the subject matter of hire, provided he fulfilled the other conditions of the contract. The fact remains that the accused-petitioner is treated as having certain rights, whatever these fights may have been, he was certainly entitled to keep and possess the articles which were the subject matter of hire, provided he fulfilled the other conditions of the contract. But from the bundle of rights belonging to the lessor (owner) some sticks appear to have been taken away and the lessee is to be treated as a person having some rights under the contract of hire. The contract, evidencing the agreement and regulating mutual rights and obligations embody certain conditions and it is the breach of some of the conditions that forms the subject matter of the present criminal proceedings............ There can be no doubt that the case of mere breach of hire-agreement without more cannot possibly form the subject matter of a criminal charge". 10. To the argument that S.405 of the Penal Code was widely worded so as to include within its ambit cases of breach of hirepurchase agreement it was observed : "Whatever may be said of this view of S.405, it is reasonably clear upon the allegations made in these cases that the real complaint against the petitioner is that he failed to pay certain sums of hire money. In a case of criminal breach of trust, the property remains with the person entrusting and the person entrusted does not have any right of his own in the property. In the present case the lessee (hirer) is acknowledged to have some interest. He has his rights. As for example, he has his fights not to have the property taken away as long as he fulfils the conditions mentioned in the contract. That being so this is not a case which could be pressed into the four corners of S.405 of the Indian Penal Code." 11. The facts of the present case are on all fours with the facts of the reported case. Here as it was there the liability of the hirer arose out of the breach of the terms of the hire-purchase agreement. Here as in the reported case, the hirer acquired certain interest in the subject matter of the agreement. Here as well as in the reported case the real complaint of the owner was that the hirer had failed to pay the instalments. Here as in the reported case, the hirer acquired certain interest in the subject matter of the agreement. Here as well as in the reported case the real complaint of the owner was that the hirer had failed to pay the instalments. The only point in which the facts of the present case differ from those of the reported case is that in the present case it is alleged that the hirer had removed certain valuable parts from the vehicle in question. But since the liability in this case was civil in nature the allegation of removal of parts from the vehicle in question could not make it a criminal liability. 12. Agreeing respectfully with the decision cited above, I am inclined to hold, therefore, that the liability which arose in this case was civil in nature and that the ingredients of the offence contemplated by S.405 of the Penal Code are absent here. The impugned charge framed by the learned Magistrate shall therefore have to be set aside.- Hence, the impugned order framing charge against the petitioner under S.406 of the Penal Code is hereby set aside and the Rule is hereby made absolute. Petition allowed.