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2009 DIGILAW 533 (PAT)

Ajay Kumar v. State of Bihar

2009-04-02

body2009
ORDER 1. The sole accused of Complaint Case No. 590(C) of 2007 prays for the quashing of the order dated 31.5.2007 passed therein by Sri Shashi Bhushan Niraj, Judicial Magistrate, First Class, Patna, whereby he found a prima facie case made out to proceed against the accused for commission of offences under Sections 406 and 420 IPC. Sajan Kumar, the complainant, impleaded as O.P. No.2 herein, tiled the aforesaid complaint on 7.3.2007 inter alia stating that he as the proprietor of Shree Agrawal Brothers carries on business of a whoe sale dealer of Siyaram Suitings and Shirtings where on 2.2.2006 he was approached by the petitioner stating that he was the proprietor of Mangalam Vastralaya at Murliganj where he carries on retail vending of clothes and purchased clothes on credit worth Rs. 93,958/- vide amanti purja nos. 074 to 077 and assured to make the payment thereof within 30 days after he had been explained of the terms and conditions of such business. It is alleged that the petitioner herein out of the said amount paid a sum of Rs. 48,405/- and had illegally and intentionally held up the outstanding balance 45,553/-. The further allegation of the complainant is that notwithstanding repeated requests and reminders the accused has evaded and avoided to pay the outstanding dues which clearly discloses his dishonest, fraudulent and mala fide intention. It is complained that the petitioner has misappropriated the money of the complainant and has thereby committed the offence of breach of trust and has also cheated him by grabbing the outstanding credit amount. It is alleged that at about 10.30 A.M. on 7.3.2007 the accused alongwith two unknown others came to the shop of the complainant and once again demanded clothes on credit without clearing his earlier dues and on refusal by the complainant the petitioner and the two unknown others became violent and started abusing the complainant in filthy language with the primary intention of lowering his prestige in the public and threatened him with dire consequences. 2. It has been submitted on behalf of the petitioner that he had repaid Rs. 2. It has been submitted on behalf of the petitioner that he had repaid Rs. 48,405/- by way of easy instalment and also made attempts to clear the balance dues but his father having fallen ill with the dreaded decease of cancer for which he was treated at the Tata Memorial Centre, Mumbai and Mahavir Cancer Sansthan which involved a lot of financial expenses and as such he was at the present moment not in a position to clear his dues. 3. It is by now well settled that to constitute an offence under Section 406 IPC there must be a dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which a breach of trust is charged. 4. Similarly where there is no allegation of the complainant being put to wrongful loss there cannot be any cheating. 5. Both these sections involve a certain element of mens rea and in the event of absence of such mens rea it cannot be said with certainty that the offences under Sections 406 and 420 IPC had been committed. 6. In the instant case admittedly the petitioner herein paid certain amount towards the dues outstanding with the complainant and as would appear he was eager to pay the balance sum but circumstances played a negative role by making his father ill with the disease which involved heavy expenditure. It would also appear that the petitioner while praying for grant of anticipatory bail had requested that he was ready to pay all credit amount in two equal instalments and the Sessions Judge vide order dated 5.7.2007 in A.B.P. No. 4097 of 2007 directed the petitioner to pay an amount of Rs. 22,777/- to the complainant and surrender in Court within a month whereafter he would be enlarged on bail. It is said that when the petitioner went to tender the bank draft of Rs. 22,776/- the complainant refused to accept the same whereupon the petitioner returned backinto the above it would appear that it was not a case of the petitioner withholding the amount and cheat the complainant intentionally but circumstances destined otherwise. 7. There is another aspect of the matter. 22,776/- the complainant refused to accept the same whereupon the petitioner returned backinto the above it would appear that it was not a case of the petitioner withholding the amount and cheat the complainant intentionally but circumstances destined otherwise. 7. There is another aspect of the matter. The non-payment of outstanding dues in the instant case does not disclose any criminal intent so as to make out a case of commission of the offences under Sections 406 and 420 IPC. It is the well settled law that when the allegations made in the complaint do not prima facie constitute any offence or make out a case, the High Court in exercise of powers under Section 482 Cr.P.C. can quash such patently, perverse orders. 8. Due regard being had to the facts and circumstances of the case there is considerable force in the submissions advanced by the learned counsel for the petitioner. In the result the application is allowed and the order of the learned Magistrate taking cognizance is hereby quashed.