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Patna High Court · body

2007 DIGILAW 435 (PAT)

Chhajuram Agrawal v. State Of Bihar

2007-02-27

SHEEMA ALI KHAN

body2007
Judgment 1. The petitioner has filed this application for quashing the order of cognizance .passed in complaint Case no. 1716(c) of 20O5 by the Sub-Divisional Judicial Magistrate, Patna, on 22.6.2005 by which he has taken cognizance of offences under sections 420, 406 and 120B of the Indian penal Code. 2. The complaint petition has been tiled on 17.6.2005 for an occurrence which allegedly took place on 9.5.2003. In the complaint petition it is mentioned that petitioner no. 1 is the proprietor of Peeruka Textiles whereas Sulochana Devi, who is also accused, but not the petitioner, is proprietor of Peeruka Sales Corporation. 3. The allegation is that in the year 20O3 both the accused persons came to the office of the complainant at Rajendra Nagar and after giving their identity, they equested that they should be supplied cloth and after persuasion the complainant began to supply goods to the petitioner. The allegation is that the goods were supplied from 9.5.2003 to 17.5.2003 which are valued at Rs. 23,77,810.90 but after the supply was made, the payment was not made by the accused-persons. It is subsequently stated at paragraph-6 :- "Yah ke dinak 10.6.2005 ko swane pariadini Abyukt ke Avas par gaye tha Abyukt se mulakat bhi hua. Lekin dekhte hi dekhte Abiyuktloan aag babula ho gaya ayam saaf shabdoen mei maal wapas yah paisa dene se inkar kiya." As a result of which it is said that the complainant suffered from mental and physical torture and his prestige became lowered in the society which has been described at paragraph-7 :- "Yah ki Aviyukto ke uakt bartao se parivadini ko kafi mansik awam sharirik peera awam aarthik hani huie aur samaj me in prathistha bhi giri." 4. On the basis of this allegations the complainant alleges that offence under sections 406, 420 and 120B of the Indian Penal Code are made out against the accused persons. 5. A large number of documents have been filed by the petitioner to show that both the parties were in business for the last several years. 6. A counter-affidavit has been filed by the opposite parties to The effect that the parties have been doing business for the past six years or more which is admitted. It is also admitted fact that both the parties are closely related to each other. 7. 6. A counter-affidavit has been filed by the opposite parties to The effect that the parties have been doing business for the past six years or more which is admitted. It is also admitted fact that both the parties are closely related to each other. 7. As per the complaint petition the supply was made in the month of May, 2003 and it is said that on 10.6.2005 i.e. after a lapse of two years the complainant approached the petitioner for return of the materials which was supplied by them. It is quite clear from the averment made in the complaint petition that the petitioner and the complainant were having a business relationship and there were several transactions regarding the supply of material/ cloth, between them. 8. To constitute offence under section 406 of the Indian Penal Code, it must be shown that at the time of entrustment of the property there was a dishonest intention to misappropriate the property and further to convict the persons under sec. 420 of the Indian Penal Code, it has to be proved that there was fraudulent or dishonest inducement to part with the property. In this case, where persons have a relationship over a period of time and are in the process of doing business dealing with each other it cannot be said that the business was started with the intention to dishonestly to cheat one or the other party. On a plain reading of the complaint peti- tion, it appears that some clothes were handed over as part of a business dealing in the year 2003 for which payment has not been made by the petitioner. It may be or may not be true that the petitioner had not made payment for the property (material/ cloth) that they received from the complainant but it cannot be said that it was the intention of the petitioner to get the supplied materials in order to misappropriate the same or to cheat the complainant. 9. Recovery of payment arising out of such business transactions can be settled by filing a suit before the civil court. 9. Recovery of payment arising out of such business transactions can be settled by filing a suit before the civil court. Instead it has become a common practice to file criminal cases even when there is a breach of business terms or in cases which involves settlement of accounts, on the plea that civil remedy takes a long time to settle, whereas by applying the procedure under the criminal law minimum time is likely to be taken to settle the dispute. This practice is a misutilisation of the procedure provided under the law and is an abuse of the process of law. 10. In the facts of this case, I find from the statement made in paragraphs-6 and 7 that the entire allegation is aimed at trying to force the accused persons to make payment to the complainant irrespective of any dispute involved with respect to the amount which may or may not be due. 11. One cannot help but notice that although the supply was made in the year 2003, no steps have been taken by the complainant to file a case immediately or within a reasonable time rather the case has been filed after two years which basically leads one to believe that the parties were trying to settle the dispute outside the court and when they failed to do so, this case has been filed in order to press the petitioner to make payments; or else face the consequences of a criminal trial. It is also admitted by parties that suit has been filed for recovery of the amount allegedly due to the complainant, which would be the proper forum to settle the issues. As such, I find that the facts of the case reveal that there is dispute between the parties with respect to amount which is payable by the petitioners to the complainant which can only be settled in a civil proceeding. 12. So far as Sec. 406 of the Indian Penal Code is concerned, the facts in the complaint petition do not constitute an offence under sec. 406 of the Indian Penal Code. 13. The essential ingredients of criminal misappropriation or criminal breach of trust in shot are :- (a) The accused must be entrusted with the property or domain over the property. (b) The accused must have misappropriated or converted to his own use, that property. 406 of the Indian Penal Code. 13. The essential ingredients of criminal misappropriation or criminal breach of trust in shot are :- (a) The accused must be entrusted with the property or domain over the property. (b) The accused must have misappropriated or converted to his own use, that property. (c) Used or disposed in violation of any direction of law prescribing the mode in which the trust is to be discharged. (d) Willfully suffered any other person to do so. (e) Such misappropriation or user or disposal must be dishonest or such sufference must be wilful. 14. In the facts of this case there is no entrustment. The word entrustment itself implies the handing over the property by lawful means and the phrase any other matter" means any other legal manner. Entrustment normally means that a property is handed over to a person to be utilised for a specific purpose. Thus, in the facts of the case, there is no entrustment and therefore, the cognizance for the offence under sec. 406 of the Indian Penal Code is not tenable in law. For the reasons aforesaid, this appli- cation is dismissed, (sic-?)