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2007 DIGILAW 1201 (PAT)

Surjeet Singh v. State Of Bihar

2007-07-24

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. The two petitioners herein, a father and son Combo, who aiongwith another have been arrayed as accused in Complaint Case No. 1534(C) of 2003, Tr. No. 2418 of 2004, have prayed for quashing of the entire proceeding including the order dated 15.12.2004 whereby cognizance of offence under Sec. 406 I.P.C. has been taken by Sri Sudhakar Singh, the then Judicial Magistrate, First Class, Bettiah. 2. It appears that one Baidyanath Prasad, the Proprietor of M/s Durga Mata Stores, Bettiah filed the aforesaid complaint on 30.6.2003 against the three accused inter alia alleging that on 13.1.2001 he had transported 241 gunny bags of gur weighing 120 quintals 50 Kg. worth Rs. 1,08,450/- through a truck of New Transport Corporation, Bettiah, bearing registration no. BRG 7225 which was delivered to the accused persons at Samrat Chemical industries, Bahuara Kothi, District Vaishali on 14.1.2001 and the driver, in proof of the delivery, had handed over the receipt to him. It is alleged that petitioner no. 1 herein had assured over telephone to pay the price of the aforesaid consignment of gur within a week but the assurance was never complied with. It is said that the complainant consequently went several times to the residence of petitioner no. 1 herein but the payment was sought to be avoided on each occasion on one pretext or the other. It is further alleged that on 29.6.2005 when the accused persons visited the office of New Transport Corporation at Bettiah, the complainant met them and reiterated his demand for payment of the outstanding arrears but he was abused and unceremoniously asked to leave the place under threat. The cause of action is said to have arisen between 13.1.2001 and 29.6.2003. 3. It has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case with ulterior motive as they have no connection or concern whatsoever with Samrat Chemical Industries, Bahuara in the District of Vaishali. In this connection it was submitted that to the contrary they have their own business of Ethyl Accetate and Organic solvents etc. running in the name and style of Samrat Laboratories and is located at the Industrial Estate at Samastipur and that due regard being had to the nature of the production in their industry there was no requirement or use of any gur. running in the name and style of Samrat Laboratories and is located at the Industrial Estate at Samastipur and that due regard being had to the nature of the production in their industry there was no requirement or use of any gur. In these circumstances it has been submitted that there being no requirement for gur in their industry there was no occasion or reason for them to buy such huge quantity of gur and it would be absolute tomfoolery to invest such huge sum of money. In support of the submissions several documents including the licence in Form L1 has been appended to show that the defaulting company Samrat Chemical Industries belonged to one Chandra Narain Rai. Their alleged visit to the office of the Transport Company at Bettiah has also been denied. It has also been submitted that even otherwise no offence under Sec. 406 I.P.C. can be said to have been made out from the averments in the complaint petition. 4. An offence of a criminal breach of trust necessarily involves the facts of (a) entrustment of the property, (b) a dishonest misappropriation or conversion of the property by the agent to his own use, or (c) dishonest use or disposal of the property in violation of the mandate of the law prescribing the mode in which the entrustment is to be discharged, or (d) dishonest use or disposal of the property in violation of the terms of any legal contract either express or implied regarding the discharge of the entrustment or wilfully allowing some other person to do so. Sec. 406 I.P.C. is not attracted in the absence of proof of entrustment of property or dominion over the property of another. 5. In the instant case it is apparent from the licence that the petitioners are not the owners of Samrat Chemical Industries and as asserted by them, they have no concern whatsoever with this firm. The learned Counsel for O.P. No. 2 has not been able to show anything which would connect the petitioners with the aforesaid firm. 6. In the circumstances, prosecution of the petitioners is an abuse of the process of the Court. Accordingly, the impugned order taking cognizance so far the petitioners are concerned cannot be sustained and has to be quashed. The application is allowed.