LAWS(PAT)-2007-6-2

M/S.TIWARI ENTERPRISES Vs. STATE OF BIHAR

Decided On June 01, 2007
M/S.Tiwari Enterprises Appellant
V/S
STATE OF BIHAR Respondents

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 11.11.2003 passed by Shri Bikram Ram, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1435(C) of 2003 by which he has taken cognizance under Section 406 of the Indian Penal Code against the petitioner.

(2.) THE case of the complainant/opposite party no. 2 is that it was doing business of marketing of electrical goods i.e. bulb and tubes under the name and style 'Osram ' and the petitioner was appointed dealer of the complainant for Bhagalpur for sale and purchase of the product of the company. During course of marketing of electrical goods the complainant booked consignment through transport carrier of M/s Paliwal Carriers vide various invoice. The goods were loaded from Patna to Bhagalpur and were sent to the petitioner at the risk of the accused no.1 for handing over the goods mentioned in the consignments to the petitioner after receipt of payments. The goods were duly received by the petitioner. The amount involved in the said consignment was Rs. 1,61,957/ -. It is said that towards clearing outstanding claim against the aforesaid consignment the petitioner issued six A/C payee cheques of S.B.I. to the complainant at his Patna office which were dishonoured by the Bank. The complainant did not receive payment from the petitioner. Thereafter the complainant served legal notice. The complainant has reason to believe that the goods loaded have been sold in the market and dishonestly converted into own use and cheated the complainant for which the complainant suffered huge loss of his money and business. 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 by the impugned order dated 11.11.2003 took cognizance under Section 406 of the Penal Code against the petitioner M/s Tiwari Enterprises. Against the said order of cognizance the petitioner has preferred the present application for quashing before this Court.It has been submitted that on the basis of allegations made in the petition of complaint no case under Section 406 of the Penal Code is made out. Learned counsel pointed out that necessary element of the offence of criminal breach of trust is that there should be entrustment of the property to the accused. The entrustment, however, may be in any manner. He further submitted that as per allegations the petitioner is the appointed dealer of the complainant for Bhagalpur for sale and purchase of the product of the complainant -company. He further submitted that goods were booked through transport carrier of accused no.1. Learned counsel submitted that there was business relationship between the complainant and the petitioner and on the basis of allegations instant case is of civil nature. On the other hand, learned counsel for the opposite party no. 2 supported the impugned order.

(3.) THUS the position is that the complainant is a company. it was doing business of marketing of electrical goods under the name and style 'Osram '. The petitioner was appointed dealer of the complainant for Bhagalpur for sale and purchase of the product of the company. During course of marketing the complainant booked consignment through transport carrier. Goods were loaded at Patna and sent to Bhagalpur. The goods as per allegations were delivered to the petitioner. Now there is dispute between the parties concerning non -payment of costs of the goods supplied to the petitioner. As per allegations, the complainant supplied the goods to the petitioner but he failed to pay cost of the same. There is no whisper in the complaint that at the very inception of the contract between the parties there was any intention to cheat. Every breach of trust gives rise to a suit for damages but it is only where there is evidence of 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 offence of criminal breach of trust involve a civil wrong in respect of which complainant may seek his redressal for damages in the civil court but every breach of trust in absence of mens rea cannot legally justify a criminal prosecution. There is nothing to show that the petitioner has acted dishonestly in the present case. Cognizance has not been taken under Section 138 of the Negotiable Instruments Act. The allegation in the present case to me appears to be essentially of civil nature and it cannot be turned into a dispute of criminal nature merely by crafty drafting. it has to be kept in mind that before issuing process a criminal court has to exercise a great deal of caution because for the accused it is a serious matter.