BIRENDRA KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Section 482 of the Criminal Procedure Code has been filed by the petitioner for quashing the entire proceedings of complaint case No. 1312 (M) of 1996 as well as the order dated 28.10.1996 whereby cognizance has been taken under Sections 406, 408 and 420. of the Indian Penal Code against the petitioner.

(2.) THE facts narrated in this application, in brief, is that Bihar State Financial Corporation filed a complaint case bearing No. 1312 of 1996. against the petitioner who is proprietor of M/s. Par Excellence. Birendra Kumar Jha, petitioner, applied for loan with the Bihar State Financial Corporation (hereinafter referred to as the Corporation) for establishment of an industry and for purchasing computer machines. The Corporation after verification sanctioned a loan of Rs. 3,65,000/ - on 22.10.1991. The petitioner accepted the terms and conditions and executed loan documents, agreement, hypothecation and mortgage of assets and machines as well as accepted the terms for sanction of the loan. The petitioner availed the loan and purchased machines worth Rs. 2,83,000/ - and assured the Corporation to repay the loan amount with interest but could not repay the loan amount with a motive to cheat the Corporation and shifted the industry to other place in violation of the condition of the agreement. Notice was sent to the petitioner on 28.8.1995 asking him as to why he had shifted the hypothecated machines and tools and also to make payment of the dues but on repeated notices neither he paid the loan amount nor he located the hypothecated assets. It is alleged that with illegal motive and with a view to avoid the realisation of the dues, the machines and hypothecated assets have been shifted with a view to grab the money and with an intention to cheat the Corporation. It is alleged that the accused is liable to be prosecuted under Sections 406, 408 and 420. of the Indian Penal Code.

(3.) A counter -affidavit has been filed by the opposite party No. 2 wherein it has been stated that the petitioner certainly committed criminal breach of trust with an intention to cheat dishonestly inducing delivery of property. Loan was disbursed to the petitioner to the time of Rs. 2,83,000/ - but on account of non -payment of the loan amount on 31.8.2002 the outstanding dues have come to Rs. 18,17,742/ -. It has also been stated that the unit was originally established at Radha Bhawan, Mainpura, Patna, and the plant and machinery were hypothecated to the Corporation but in the clandestined manner hypothecated assets have been shifted to other premises at Machhuatoli. Neither any information was given to the Corporation nor prior permission was obtained from the Corporation to shift the hypothecated machiner from the rental premises which was approved by the Corporation. The Corporation sent several letters regarding submissions of the fresh rental agreement of the new site as to bring back the machines to original site but the petitioner did not respond to any of the letters. The Corporation had no other option but to lodge the complaint case.