Patna High Court
B.Vijay Kumar & Ors vs The State Of Bihar & Anr on 20 June, 2012
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.5035 of 2012
1. B. Vijay Kumar, S/o Late L.G. Balakrishnan, Managing Director, M/s L.G.
Balakrishnan, & Bros. Ltd 6/16/13, Krishna Rama Puram Road, Ganpathy,
P.S. Ganpathy, Coimbatore-641006, Tamilnadu.
2. P. Prabakaran @ Prabakaran, S/o Palanisamy, Chief Executive Officer
(C.E.O.) M/s L.G. Balakrishnan, & Bros. Ltd 6/16/13, Krishna Rama Puram
Road, Ganpathy, P.S. Ganpathy, Coimbatore-641006, Tamilnadu.
3. Mahesh Sharma, S/o Late Kishori Lal Sharma, Regional Manager, M/s L.G.
Balakrishnan, & Bros. Ltd North Chitranjan Avenue, Ist Floor, Chitranjan,
Kolkata (W.B.)
.......... Petitioners.
Versus
1.The State of Bihar
2. Washimul Haque Nazmi, S/o Late Md. Nazmul Haque, Partners, M/s Mithila
Scooters, Kachchisarai Road, Muzaffarpur, P.S. Mithanpura, District-
Muzaffarpur.
..... ........ ...... Opposite Parties.
For the petitioners: Mr. Suraj Narayan Prasad Sinha, Sr. Advocate
Mr. Mukesh Kumar, Advocate.
For the State : Mr. B. N. Pandey, A.P.P.
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
ORAL JUDGMENT
Date: 20-06-2012 Hemant Kr 1. This petition under Section-482 of the Cr.P.C.has Srivastava,J.
been filed by the petitioners for quashing the order dated 04- Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 12-2008 passed by Mrs. Reshma Verma, Judicial Magistrate- Ist Class, Muzaffarpur in complaint case No. C-2688 of 2007 whereby and whereunder, she having found a prima facie case under Sections-406, 418 & 120B of the Indian Penal Code, ordered to issue summons against the petitioners for procuring their attendance to face trial in the above-said case.
2. The brief fact which lies to file this quashing petition is that Opposite Party No. 2 namely, Washimul Haque Nazmi filed Complaint Case No. C-2688 of 2007 in the court of Chief Judicial Magistrate, Muzaffarpur against petitioners and others alleging therein that he and his brother, namely, Md. Nazimul Haque are owners and partners of M/s Mithila Scooters, Kachchisarai Road, Muzaffarpur, P.S. Mithanpura, District-Muzaffarpur whereas petitioners and others are staffs and officials of M/s L.G. Balakrishnan and Brothers Ltd. The Opposite Party No. 2 has been a distributor of products of the M/s L.G. Balakrishnan and Brothers Ltd for the last 20 years and earlier the depot of aforesaid company was situated at Patna but later on, the aforesaid company used to be brought his products in the godown of Opposite Party No. 2 situated at Muzaffarpur and from there, the products of company were being distributed. It is further alleged that petitioner No. 3 and Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 accused, B.K. Singh used to take bank cheques without date and amount mentioned thereunder from Opposite Party No. 2 for the company and the cheques would be encashed only after getting the consent of the Opposite Party No. 2. It is further alleged that in the year, 2006, the goods were lifted from the godown of the Opposite Party No. 2 by accused Nos. 4, 5 & 6 but they, in collusion with petitioner Nos. 1 & 2 did not deposit the entire amount with the Opposite Party No. 2. The Opposite Party No. 2 doubted about the conduct of the accused persons and requested them to pay the entire amount but the accused persons including the petitioners assured to settle the account later on. Furthermore, it is alleged that on 25-06-2007, accused No. 4 namely, B.K. Singh ordered the Opposite Party No. 2 to send the goods but Opposite Party No. 2 refused to send the goods by saying that the goods would be sent only when the accounts are cleared and after that accused No. 4 came with a ledger and told that only an amount of Rs 2,00,000/- (two lacs) was due in the market but the said amount was different from the ledger brought earlier by accused No. 6 from office at Patna and then, Opposite Party No. 2 came to know about the misappropriation of the due amount. The Opposite Party No. Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 2 telephoned to the accused persons not to encash the cheques entrusted to them until, the earlier accounts are cleared and, thereafter, petitioner No. 3 and accused No. 5 came with another ledger in which, the entry was only of last five months and the due amount Rs 2,00,000/- (two lacs) was cut and in place thereof, three lacs had been entered. The Opposite Party No. 2 reported the above-said matter to petitioner Nos. 2 & 3 on telephone and after that, petitioner No. 3 & other accused came to Opposite Party No. 2 and accounts were checked on 20-07-2007 and 31-07-2007 and then, it was revealed that the total amount to Opposite Party No. 2 comes to Rs 10.31,425/- which was due against the company since the last 2007 and the aforesaid amount was misappropriated by the accused Nos. 4 & 5. It is further alleged that it was also detected that an amount of Rs 28,88,948/- was found due against the accused persons for the year, 2006. The accused No. 6 accepted that he had sold the goods worth Rs 11,30,576/- from the godown of Opposite Party No. 2 but only Rs 3,74,630/- had been deposited to the Opposite Party No. 2 and, accordingly, the misappropriated amount came to the tune of Rs 7,55,949/-. To solve the aforesaid dispute, a meeting was held in the office of Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 Opposite Party No. 2 and it was decided that accused Nos. 5 & 6 would return the amount failing which, a legal notice would be given. In the backdrop of the aforesaid pleadings, Opposite Party No. 2 claimed that total amount of Rs 46,76,633/- was misappropriated by accused persons including the petitioners and they also committed criminal offence by using blank cheques given by the Opposite Party No. 2 to them in course of business transaction.
3. The learned Chief Judicial Magistrate, Muzaffarpur after taking cognizance, transferred the case record to the court of Smt. Reshma Verma, Judicial Magistrate-Ist Class for inquiry and disposal and after that, learned Judicial Magistrate having conducted the inquiry under Section-202 of the Cr.P.C., issued summons against the petitioners and other accused to face trial for the offence under Sections-406,480 & 120B of the Indian Penal Code whereas; the learned Magistrate did not find prima facie case for the offences under Sections-420, 467, 468 & 471 of the Indian Penal Code.
4. Being aggrieved by the above-said order of issuance of processes against the petitioners and others, the petitioners have preferred this petition for quashing the above said order as well as the entire proceeding of Complaint Case Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 No. C-2688 of 2007.
5. This petition was admitted for hearing on 13-02-2012 and notice was issued to Opposite Party No. 2 and in pursuance of the aforesaid notice, the Opposite Party No. 2 appeared before this court by filing Vakalatnama in favour of his learned counsel, Mr. Vinod Kumar Sinha but when this matter was called out for hearing on 25-04-2012, none appeared on behalf of the Opposite Party No.2.
6. Learned counsel appearing for the petitioners, has challenged the validity of the impugned order on the ground that the learned court below had no right to issue summons against the petitioners in their individual capacity because the facts of the complaint case reveal that the entire allegation of Opposite Party No. 2 centres around against the company, namely, M/s L.G. Balakrishnan and Brothers Ltd. Continuing his submission, he submitted that when the accused is a corporate body, summons would have been issued in the name of that corporate body only. In support of his contention, he referred a decision reported in 2006(4) PLJR 571 in which, this court has held that when the accused is a corporate body, summons have to be issued in the name of that corporate body only.
Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012
7. It has been further contended by him that the facts of the complaint case disclose that there was a business transaction between M/s M/s L.G. Balakrishnan and Brothers Ltd and Opposite Party No. 2. It has further been contended by him that according to the case of the Opposite Party No. 2, all the acts took place in course of business transaction and the same fact has been found by the learned Judicial Magistrate in course of inquiry which is evident from the impugned order dated 04-12-2008 itself and, therefore, no case under Sections-406, 418, 120B of the Indian Penal Code was being made out against the petitioners but in spite of that, learned Judicial Magistrate-Ist Class, Muzaffarpur passed the impugned order which is not in accordance with law. He relied upon a decision reported in 2006(3) PLJR 331 (M.L. Dalmia & Company Ltd & ors. Vs. The State of Bihar & Anr.) in which it has been held by this court that there is practice of filing criminal cases, which out and out falls within purview of civil disputes and learned lower court also without applying judicial mind and examining the facts disclosed in the complaint petition, taking cognizance and proceed to prosecute the accused. Furthermore, it is contended that mere breach of contract does not give rise to criminal Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. It has further been contended on behalf of the petitioners that all the transactions in the present case took place in course of business transaction and there was no intention of the petitioners as well as other accused to cheat the Opposite Party No. 2. It is further contended by him that as a matter of fact, it was a dispute of accounting and prior to filing of the present complaint case, the M/s L.G. Balakrishnan and Brothers Ltd filed Complaint Case No. 5872 of 2007 in the court of Chief Judicial Magistrate, U.S. Nagar against the Opposite Party No. 2 and as a matter of fact, the present case has been filed by Opposite Party No. 2 in retaliation of filing of the above-said case bearing Complaint Case No. 5872 of 2007.
8. On the contrary, learned Additional Public Prosecutor appearing for the state supported the impugned order arguing that the learned Judicial Magistrate, having conducted an inquiry, found the prima facie case against the petitioners and other accused persons and, therefore, it would not be proper for this court to exercise the power vested under Section-482 of the Cr. P.C. at least, at this stage and the points raised on Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 behalf of the petitioners need deeper investigation which is only possible in course of trial.
9. Admittedly, the learned Judicial Magistrate-Ist Class, Muzaffarpur found a prima facie case under Sections-406, 418 & 120B of the Indian Penal Code after conducting an inquiry under Section-202 of the Cr.P.C. It would appear from the impugned order dated 04-12-2008 that after inquiry, the learned Judicial Magistrate came to the conclusion that the dispute relates to accounting in course of business transaction. Although the learned Judicial Magistrate came to the above-said conclusion but in spite of that, the learned Magistrate came to this finding that prima facie case under Sections-406, 418 & 120B of the Indian Penal Code is made out against the petitioners and other accused. Section-406 of the Indian Penal Code says that- whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extent to three years, or with fine, or with both. The word " criminal breach of trust" has been defined in Section-405 of the I.P.C. which says- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
10. From bare perusal of aforesaid Sections, it is obvious that to constitute the offence of criminal breach of trust, the accused should be entrusted with property or with dominion over it and he either misappropriated it or converted it to his own uses or used it or disposed of it with dishonest intention. So, to constitute an offence under Section-406 of the Indian Penal Code, the dishonest intention is an important ingredient. Admittedly, in the present case, the concerned company came in dominion of the alleged amount in course of business transaction and it is not specific case of the Opposite Party No. 2 that from the very inception of the aforesaid transaction, the intention of above-said company was dishonest. Furthermore, it is admitted case of the Opposite Party No. 2 that he made complain to petitioners in respect of his dues and after that, a meeting was held between Opposite Party No. 2 and officials of the aforesaid company. So, the aforesaid fact clearly goes to show that the dispute relates to the matter of accounting and, therefore, the application of Section-406 of the Indian Penal Code appears Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 to be doubtful.
11. Learned Judicial Magistrate has also found a prima facie case under Section-418 of the Indian Penal Code which says that whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he is bound either by law, or by legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. The term "cheating" has been defined in Section-415 of the Indian Penal Code and the aforesaid Section-415 says ---"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat".
12. From bare perusal of the aforesaid Section-415, it would appear that the aforesaid section has two parts; while in the first part, the person must dishonestly or fraudulently introduce to other to deliver any property, in the second part, the person should intentionally induce the other to do or omit Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 to do a thing. In the first part, inducement must be dishonest or fraudulent and in the second part, the inducement should be intentional.
13. In the present case, it is not the case of Opposite Party No. 2 that he was dishonestly and fraudulently induced by the petitioners and other accused to deliver any property and it is also not the case of Opposite Party No. 2 that petitioners and other accused intentionally induced him to do or omit to do a particular thing. Therefore, the application of Section-418 of the Indian Penal Code in the present case also appears to be doubtful.
14. In this case, admittedly, Opposite Party No. 2 and his brother were distributor of products of M/s L.G. Balakrishnan and Brothers Ltd for the last 20 years and the cheques were issued by the Opposite Party No. 2 in course of business transaction with the aforesaid M/s L.G. Balakrishnan and Brothers Ltd but admittedly, the aforesaid M/s L.G. Balakrishnan and Brothers Ltd has not been made accused by Opposite Party No. 2 in his complaint petition. Furthermore, it is an admitted position that all the petitioners are officials of the aforesaid company but they have been made accused in complaint petition, particularly, in the Patna High Court Cr.Misc. No.5035 of 2012 dt.20-06-2012 circumstance, when the alleged transaction of the Opposite Party No. 2 had taken place with the above-said company and, therefore, I am of the opinion, that petitioners could not be summoned in their individual capacity and the fact of this case is squarely covered by the decision reported in 2006(4) PLJR 571.
15. In the aforesaid circumstances, I am of the opinion that continuance of the proceedings against the petitioners is nothing but only an abuse of the process of the court.
16. On the basis of aforesaid discussions, this quashing petition is allowed and the impugned order dated 04-12-2008 as well as entire proceeding of Complaint Case No. 2688 of 2007 is quashed in respect of petitioners only.
17. In the above-said manner, this petition stands disposed of.
Patna High Court (Hemant Kumar Srivastava, J) The 20 th day of June, 2012 A.K.V./- AFR