MANOJ KUMAR GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 5.12.2003 passed by Shri S.K. Sinha Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1690(C) of 2003 whereby and whereunder he has taken cognizance against the petitioner for offence punishable under Sections 406, 420 and 120B of the Indian Penal Code.

(2.) THE case of complainant/opposite party no. 2 Amitabh Kumar is that he is the proprietor of a concern named Amit Publicity situated at Patna. He is engaged in the business of advertisement and publicity. It is said that on 18.11.2002 petitioner Manoj Kumar Gupta @ Manoj Kumar alongwith other co-accused went to the office of the complainant and placed order to publish the product of M/s Deepa Harbal Pvt. Ltd. of Bhopal in different daily news papers publishing from Bihar and Jharkhand. An agreement to that effect was also made between the complainant and M/s Deepa Harbal Pvt. Ltd. One of the co-accused named Tapus Kumar Banerjee placed work order to the complainant on behalf of the company. The complainant thereafter gave publicity in different daily newspapers published from Bihar and Jharkhand and submitted cost of publication through invoice raised by the complainant in the name of M/s Deepa Harbal Pvt. Ltd. The total cost came to Rs. 1,65,094/-. The Company M/s Deepa Harbal Pvt. Ltd. in pursuance of the invoice paid Rs. 20,000/- to the complainant through the petitioner Manoj Kumar Gupta and thereafter no payment on that account was made to the complainant. It appears that the complainant was examined on solemn affirmation and during inquiry under Section 202 of the Code two witnesses were examined and the learned Magistrate after being satisfied that there was sufficient ground for proceeding further against the petitioner and other accused persons, took cognizance and directed for issuance of summons against them. Against the said order dated 5.12.2003 the petitioner has preferred the present application for quashing before this Court.

(3.) IN Bishundeo Prasad Vidyarthi vs. The State of Bihar and one other [1999(1) PLJR 393] it has been observed that every breach of trust gives rise to a suit for damages but only when there is evidence of a mental act of fraudulent misappropriation then the commission of embezzlement of any sum of money becomes a penal offence punishable as criminal breach of trust. Every breach of trust in the absence of mens rea cannot legally justify a criminal prosecution. Then in the case of Girish Kumar @ Girish vs. The State of Bihar [1999(1) PLJR 561] this Court observed that in absence of averment made in the complaint that the complainant was made to part with the property with dishonest intention or that the complainant was induced to part with any other property, such matters are of a civil liability. The decision reported in 2002(2) PLJR 45 has no application in this case.