DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two petitioners herein, a father and son Combo, who aiongwith another have been arrayed as accused in Complaint Case No. 1534(C) of 2003, Tr. No. 2418 of 2004, have prayed for quashing of the entire proceeding including the order dated 15.12.2004 whereby cognizance of offence under Sec. 406 I.P.C. has been taken by Sri Sudhakar Singh, the then Judicial Magistrate, First Class, Bettiah.

(2.) IT appears that one Baidyanath Prasad, the Proprietor of M/s Durga Mata Stores, Bettiah filed the aforesaid complaint on 30.6.2003 against the three accused inter alia alleging that on 13.1.2001 he had transported 241 gunny bags of gur weighing 120 quintals 50 Kg. worth Rs. 1,08,450/ - through a truck of New Transport Corporation, Bettiah, bearing registration no. BRG 7225 which was delivered to the accused persons at Samrat Chemical industries, Bahuara Kothi, District Vaishali on 14.1.2001 and the driver, in proof of the delivery, had handed over the receipt to him. It is alleged that petitioner no. 1 herein had assured over telephone to pay the price of the aforesaid consignment of gur within a week but the assurance was never complied with. It is said that the complainant consequently went several times to the residence of petitioner no. 1 herein but the payment was sought to be avoided on each occasion on one pretext or the other. It is further alleged that on 29.6.2005 when the accused persons visited the office of New Transport Corporation at Bettiah, the complainant met them and reiterated his demand for payment of the outstanding arrears but he was abused and unceremoniously asked to leave the place under threat. The cause of action is said to have arisen between 13.1.2001 and 29.6.2003.

(3.) AN offence of a criminal breach of trust necessarily involves the facts of (a) entrustment of the property, (b) a dishonest misappropriation or conversion of the property by the agent to his own use, or (c) dishonest use or disposal of the property in violation of the mandate of the law prescribing the mode in which the entrustment is to be discharged, or (d) dishonest use or disposal of the property in violation of the terms of any legal contract either express or implied regarding the discharge of the entrustment or wilfully allowing some other person to do so. Sec. 406 I.P.C. is not attracted in the absence of proof of entrustment of property or dominion over the property of another.