SUMIT RAJENDRA BHALOTIA Vs. STATE OF U P

JUDGEMENT

(1.) THROUGH this petition which has been filed by the applicant under Section 482 Cr.P.C, he has prayed that the order dated 22.8.2009 passed by learned Additional Chief Judicial Magistrate (1), Court No. 2, Allahabad in Criminal Case No. 3305/09 (Prem Chandra v. Sumit Bhalotia) be quashed and set aside.

(2.) BRIEF facts of this case are that opposite party No. 2, Premchandra Dubey, a resident of Allahabad City filed a complaint case under Sections 420/406 I.P.C. in the Court of learned Magistrate concerned on 8.7.2009. According to this complaint, opposite party No. 2 is a building painter and is doing the work of painting in Mumbai. He has got an office there in the name of Shivam Construction. Keeping in view his business prospects and derivable income he decided to leave Bombay and start his business of building painting in the city of Allahabad. Therefore, he came back to Allahabad and left his business at Mumbai to be managed by his brother Manik Chandra. The applicant is a resident of Mumbai. As per allegations of the complaint, the applicant had renovated his residential building at Mumbai and made certain additional constructions in it. He wanted his renovated building to be painted and for the purpose he went to the office of O.P. No. 2 at Mumbai where he met the brother of the complainant and informed him regarding his requirements. The brother of opposite party No. 2 told the applicant that he (the applicant) should contact his brother who at that time was at Allahabad. It has been alleged in the complaint that the applicant made a telephonic call to respondent No. 2. Since it was a big contract, the opposite party No. 2 told the applicant that he will come to Mumbai and after inspecting the building he will quote the rates and the probable expenditure. The opposite party No. 2 had informed the applicant regarding the rate etc. and the labour charges. Thereafter the opposite party No. 2 went to Mumbai and contacted the applicant on 8.9.2007 and handed him over the quotations which were accepted by the applicant. The entire painting work was completed by opposite party No. 2 in the month of April, 2008. Thereafter he submitted a bill to the applicant which was about Rs. 15,56,320/-. The advances already made were to be adjusted in this amount. Thereafter the opposite party No. 2 came back to Allahabad with the belief that the applicant will pay the dues within a reasonable time. When the payment was delayed, the opposite party No. 2 went to Mumbai and requested the applicant for payment but no payment was made. Thereafter, the opposite party No. 2 came back to Allahabad and sent a legal notice to the applicant through his counsel for payment of dues. In para 18 of his complaint under Section 200 Cr.P.C, the opposite party No. 2 has said that the applicant has cheated him, committed a breach of contract and and also committed the offence of breach of trust. The learned Magistrate examined the complainant/opposite party No. 2 under Section 200 Cr.P.C. and also examined the witnesses produced by the complainant/opposite party No. 2 before him under Section 202 Cr.P.C. Thereafter through the impugned order, the learned Magistrate summoned the applicant under Section 420/406 I.P.C. Feeling aggrieved by this order and the proceedings pending before his Court, the applicant has moved this petition with a prayer that the order impugned and the entire proceedings of the criminal case be quashed.

(3.) IN the instant case the learned Magistrate had summoned the applicant under Sections 406/420 I.P.C. The definition of criminal breach of trust has been given under Section 405 I.P.C. If we analyse this definition it will be clear that the first ingredient of the section is "entrusting with property, or with any dominion over property". This ingredient is an important ingredient of the offence of criminal breach of trust and from the records it is evident that in the instant case this ingredient is missing all together. Therefore, summoning of the applicant under Section 406 I.P.C. cannot be sustained.