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2006 DIGILAW 556 (PAT)

Sarba Paswan v. State of Bihar

2006-06-30

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ORDER 1. This application under Section 482 of the Code of Criminal Procedure, 1973 has been filed for quashing the order dated 28.7.2004 passed by Sri Lal Bahadur. J.M. 1st Class, Hilsa in Complaint Case No. 687/2003 by which he has ordered to issue summons against the petitioner for facing trial under Section 406 of the Indian Penal Code. 2. Heard. 3. The facts leading to this application are as follows: The complainant-Opposite Party No. 2 Dharmveer Jamadar filed a complaint case against the petitioner before the Additional Chief Judicial Magistrate, Hilsa (Nalanda) alleging therein that a scheme was sanctioned for Rs. 3,97,000/- for construction of bridge and road in village Badrabad to be paid out of M.P. fund of Sri Ganga Singh, M.P. The petitioner was appointed agent for doing the work. He appointed the complainant (Opposite Party No.2) as a mate for making arrangements of labourers and for getting the work done by them. Opposite Party No. 2 arranged the labourers from the nearby villages and work continued from November, 2001 to May, 2002. The petitioner used to make payment of workers through Opposite Party No.2 and the labourers used to either sign or put L.T.I. on the muster roll. When the work was completed, petitioner asked Opposite Party No. 2 to obtain signature or the L.T.I. of the labourers on the muster roll and assured that when the fund would be available and he receives the cheque, the wages would be paid to the labourers. Accordingly, the labourers put their signature/L.T.I. on the muster roll. There was dues of Rs. 60,000/- from the beginning to end of the construction work towards the wages of the labourers. Thereafter, when the petitioner received payment from the Government, Opposite Party No. 2 contacted him for payment of Rs. 60,000/which was due to the labourers but the petitioner went on avoiding to make payment and on 15.12.2003 he flatly denied to make payment. The complainant-Opposite Party no. 2, hence, filed this complaint petition against the petitioner. After filing of the complaint, Opposite Party No. 2 was examined on solemn affirmation. He also examined five witnesses in enquiry under Section 202 Cr.P.C. The learned Judicial Magistrate after perusing the statement of the complainant on solemn affirmation and their witnesses found that they all have supported the allegations made in the complaint. He, hence, passed the impugned order. After filing of the complaint, Opposite Party No. 2 was examined on solemn affirmation. He also examined five witnesses in enquiry under Section 202 Cr.P.C. The learned Judicial Magistrate after perusing the statement of the complainant on solemn affirmation and their witnesses found that they all have supported the allegations made in the complaint. He, hence, passed the impugned order. Being aggrieved, the petitioner filed this application. 4. Learned counsel for the petitioner submitted that as per prosecution case, the allegation against the petitioner is that the petitioner has not paid Rs. 60,000/- to the complainant after final accounting. Therefore, it is a civil dispute and the Opposite Party No.2 can file money suit for realising the same and no criminal case against the petitioner is maintainable. 5. He further submitted that no amount was entrusted by the Opposite Party No.2 to the petitioner. Therefore, no offence under Section 406 of the Indian Penal Code for breach of trust is made out in this case. 6. He also argued that though the witnesses were examined by Opposite Party No.2, the learned Magistrate without considering their statements has passed the impugned order. 7. It was also submitted by him that the entire dues has been paid to the labourers and, therefore, it would be an abuse of the process of the court to proceed with the case. 8. As regards the first and second submissions of the learned counsel, though a civil suit could also be brought against the petitioner for realisation of the amount, as the allegation is that though the petitioner got the signature or L.T.I. of the labourers on the muster roll as a token of receipt of wages, he did not pay wages, hence, the intention of the petitioner was dishonest. So, the petitioner was also criminally liable. 9. Then, as the allegations are that the petitioner got his signature/L.T.I. of the labourers on the muster roll with the assurance that the amount would be paid when he received payment for the work done, but in spite of receipt of cheque and in spite of repeated demands, did not make payment and ultimately refused to pay the amount. The allegation clearly show that the petitioner after showing disbursement of the wages to the labourers, misappropriated the some and that too dishonestly. The allegation clearly show that the petitioner after showing disbursement of the wages to the labourers, misappropriated the some and that too dishonestly. Therefore, the allegations at least make out an offence of criminal misappropriation punishable under Section 403 I.P.C. So, whether an offence under Section 406 of the Indian Penal Code is made out or not, it would be decided at the time of framing of charge by the court below. As the allegations discloses an offence at least under Section 403 of the Indian Penal Code, the impugned order cannot be quashed. 10. So far, the third submission of the learned counsel, the impugned order shows that the learned Magistrate had considered the statements of the witnesses examined under section 202 Cr.P.C. So, this submission is not at all tenable. 11. Then, so far as the payment of the entire dues by the petitioner, the application of the petitioner indicates that if at all payment was made, the same was made after his application for anticipatory bail was dismissed by the High Court. Explanation of Section 403 I.P.C. also shows that a dishonest misappropriation for payment only is a misappropriation within the meaning of the Section. Therefore, even if the entire dues has been subsequently paid by the petitioner, he cannot escape the offence under Section 403 of the Indian Penal Code and that would not be a ground to quash the impugned order. 12. In the result, this application fails and it is accordingly dismissed.