HARE KRISHNA SAHAY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure for quashing the prosecution of the petitioner under Sections 406, 409 and 420 of the Indian Penal Code, cognizance of which was taken by the Chief Judicial Magistrate, Muzaffarpur by order dated 7th November, 1979, which is now pending in the court of Sri R. P. Ram, Judicial Magistrate, first Class, Muzaffarpur.

(2.) The State Government launched a programme of holding lottery. In pursuance of the scheme of lottery, District Lottery Officers were appointed. Camp Offices for the sale of lottery tickets were opened outside this State as well. Some of the camps, involved in this proceeding, were at Delhi, Hyderabad and Bombay. For bulk purchases of lottery tickets the scheme envisaged a rebate of 20 % of the price of tickets. Each ticket was of the value of Re. 1/-. The scheme also envisaged that out of the winning of the tickets the agents had sold the ticket was to be entitled to bonus which was a fixed percentage of the winning. The petitioner was one such agent. He purchased in bulk from the camp at Hyderabad. The petitioner purchased tickets of the value of Rs. 3,54,000/- for the 57th draw of the lottery. The sales commenced on 7th April, 1975. The draw was held on 15th June, 1975. The petitioner paid the price of these tickets by seven cheques, the total amount of which after giving deduction of 20% in terms of the scheme, the petitioner was liable to pay Rs. 2,68,000/-. The cheques were presented by the District Lottery Officer to the Bank but they are all dishonoured as there was insfficient amount of money in the account. After great chasing some dues were adjusted against the claims of the petitioner. But a sum of Rs. 85,900/- remained unpaid. The petitioner purchased tickets for the 62nd draw worth Rs. 60,000/- for which the petitioner was liable to pay Rs. 45,600/-. He gave cheques of this value bat this cheque also was dishonoured and the entire sum remained unpaid. The petitioner took no step to show his bona fides that he intended to pay. For the 63rd draw the petitioner purchased tickets worth Rs 30,000/- for which he was liable to pay Rs. 22,800/-. The cheque for this amount also was not honoured. Thus, a total sum of Rs. 1,54,300/- was not paid for the three draws by the petitioner. Despite chasing and coaxing, these sume remained unpaid. The District Lottery Officer finding that he had been cheated by the petitioner, lodged a first information report at Kazi Mohammedpur Police Station in the town of Muzaffar pur which was numbered as Case No. 79 (9)/76. After investigation the police submitted charge-sheet for prosecution of the petitioner under Section 420, 409 and 406 of the Indian Penal Code. The learned Chief Judicial Magistrate, Muzaffarpur, took cognizance of the offence and transferred the case to R. P, Ram for disposal. It would be useful to state here that the petitioner behaved similarly with several District Lottery Officers for which several other cases were submitted in which separate charge sheets have been submitted. The total sum, alleged to be due from the petitioner is about rupees thirty lakhs.

(3.) Learned counsel for the petitioner submitted that upon the facts alleged by the District Lottery Officer and as found by the police, no offence had been made out against the petitioner. According to learned counsel for the petitioner, the case was merely one of breach of contract and not of cheating nor of criminal breach of trust. According to learned counsel for the petitioner, in absence of any assertion by the District Lottery Officer that the tickets had been sold to the petitioner on any inducement which was found to be false, the petitioner had not indulged in any fraudulent misrepresentation of facts and, therefore, no cheating had been committed by the petitioner. The petitioner secondly submitted that there was nothing to indicate that the petitioner had no intention to pay at the outset for the tickets sold to him and, therefore, the prosecution of the petitioner for cheating the District Lottery Officer, Muzaffarpur, was misconceived and erroneous in law. Lastly, it was submitted that no case of criminal breach of trust had been made out as there had been no entrustment of tickets with the petitioner. The tickets, on the own showing of the prosecution had been sold to the petitioner. They, thus, became his property and could not be said to have been entrusted with the petitioner. Upon that basis it was submitted that no offence under Section 406 or 409 of the Indian Penal Code has been made out even prima facie.