Judgment Rekha Kumari, J. 1. This is an application under Sec. 482 of the Code of Criminal Procedure for quashing the order dated 7.7.2004 passed by the Chief Judicial Magistrate, Madhubani in CR No. 738 of 2004 whereby the learned Magistrate has taken cognizance under Sections 420 and 406 of the Indian Penal Code and has directed to issue summons against petitioner Jawaharlal Mahto to face trial. 2. The case of the complainant Branch Manager, Industrial Area, Pandaul (Bihar State Financial Corporation), Madhubani (Opposite Party No. 2) is that for starting Jawahar Medical Industry, the petitioner was given loan on different dates, the total amounting to Rs. 5,95,905.77 P. The petitioner had to construct a building and purchase plants and machines. After purchase of the plants and machines the same were hypothecated to the Bihar State Financial Corporation. However, when on 27.9.1992 the site of the above building was inspected, some of the plants and machines as noted in the complaint petition, were found missing. When the petitioner was asked to produce those machines at the spot, he failed to do so and, hence, the complainant was convinced that the petitioner had committed breach of trust. He accordingly filed the above complaint petition. 3. The learned Chief Judicial Magistrate after perusing of the complaint petition found a prima facie case under Sections 420 and 406 of the Indian Penal Code against the petitioner and passed the impugned order. 4. Learned Counsel for the petitioner submitted that the complainant was not a public servant and the order has been passed without examining the complainant on solemn affirmation. Therefore, the impugned order is illegal. He further submitted that no offence under Sec. 406 and 420 of the Indian Penal Code is made out on the allegations made in the complaint petition. 5. Learned Counsel for Opposite Party No. 2 submitted that Opposite Party No. 2 is a public servant and that the offence under Sections 406 and 420 of the Indian Penal Code is made out against the petitioner on the allegations made in the complaint petition and for this he relied on a decision of this Court in the case of Mahesh Prasad Manjhi and Anr. V/s. The State of Bihar and Anr. V/s. The State of Bihar and Anr. 1999 (3) PLJR, 90 wherein it has been held that in the case of mortgage or hypothecation, though the ownership does not pass to the persons in whose favour the mortgage or hypothecation is created, but it does create a beneficial interest in his favour and if the property is removed without his consent and in violation of the terms of the agreement, prima facie, the offence of breach of trust is made out. 6. As regards the first submission of the learned Counsel for the petitioner, under Sec. 21 of the Indian Penal Code every person in the service or pay of a Corporation established by the State government is a public servant. The Bihar State Financial Corporation has also been created by the State under the State Financial Corporation Act, 1951. Therefore, there is no merit in the submission of the learned Counsel that the complainant was not a public servant. This being so, in view of proviso of Sec. 200 Cr.P.C. the complainant was not required to be examined by the Chief Judicial Magistrate before passing the impugned order. 7. So far as the second contention of the learned Counsel for the petitioner is concerned, it is evident from the allegations made in the complaint petition that there is no allegation of inducement. So, no offence under Sec. 420 of the Indian Penal Code is made out. 8. As regards the criminal breach of trust punishable under Sec. 406 of the Indian Penal Code, the first ingredient of the offence is that the property, of which criminal breach of trust is alleged, must be entrusted to the offender by other person. In this case the plants and machines purchased by the loan advanced were hypothecated to the Bihar State Financial Corporation by the petitioner. The question, hence, is whether there is entrustment in such hypothecation. 9. In this connection the decision of the Supreme Court in the case of Central Bureau of Investigation V/s. Duncans Agro Industries Ltd. may be referred to. In that case it was held that when some goods are hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. 9. In this connection the decision of the Supreme Court in the case of Central Bureau of Investigation V/s. Duncans Agro Industries Ltd. may be referred to. In that case it was held that when some goods are hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in the other person and the offender must hold the property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. In the instant case, a floating charge was made on the goods by way of security to cover up credit facility. In our view, in such a case for disposing of the goods covering the security against credit facility, the offence of criminal breach of trust is not committed". 10. In the case of Indian Oil Corporation V/s. NEPC India Limited and Ors. (2006) 6 SCC, 736, the Indian Oil Corporation had entered into a contract with NEPC India Limited to supply aircraft fuel. NEPC had hypothecated two aircrafts to the Indian Oil Corporation by way of charge and as security for payment of the amounts due. The NEPC defaulted in payment of the fuel supplied. The Indian Oil Corporation then filed a complaint against NEPC for unauthorisedly and clandestinely removing the engines and certain other parts of the hypothecated aircrafts. The Supreme Court applying the case of Duncans Agro Industries Limited (Supra) held that "as the possession of the aircrafts remained all along with the NEPC India in its capacity as the owner and the deed of hypothecation merely created a charge over the aircrafts with a right to take possession in the event of default, it cannot be said that there was either entrustment of the aircrafts or entrustment of the dominion over the aircrafts by IOC to NEPC India. The very first requirement of Sec. 405, i.e., the person accused of criminal breach of trust must be "entrusted with the property" or "entrusted with any dominion over property" is absent there. 11. The very first requirement of Sec. 405, i.e., the person accused of criminal breach of trust must be "entrusted with the property" or "entrusted with any dominion over property" is absent there. 11. In this case also, the above plants and machines purchased by the petitioner were hypothecated, obviously, as a security for payment of loan advanced by the complainant. The hypothecation thus created only a charge on the property with a right in favour of the Corporation to take possession in the event of default on the part of the petitioner. Such charge over the property as observed by the Supreme Court in the case of Indian Oil Corporation (Supra) does not create any beneficial interest in the creditor whereas he takes possession of the property in exercise of the right under the hypothecation. So, when the Corporation was neither the owner of the plants and machines nor was in possession nor had beneficial interest in it, no offence of entrustment is involved in such hypothecation. 12. Hence, in view of the above decision of the Supreme Court, even if the plants and machines were found missing, no offence under Sec. 406 of the Indian Penal Code is made out against the petitioner. 13. Therefore, though the Opposite Party No. 2 was a public servant and he was not required to be examined on solemn affirmation before passing of the impugned order, as no offence under Sections 420 and 406 of the Indian Penal Code is made out on the allegations made in the complaint petition, the impugned order cannot be sustained. Accordingly, the impugned order is quashed and the application is allowed.