ABHAY KANT SAHAY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Sec. 482 of the Code of Criminal Procedure, 1973 has been filed for quashing the order dated 8.8.2003 passed by the Judicial Magistrate, 1st Class, Patna in Complaint case No. 121 (c) of 2003 whereby he has ordered to issue summons against the petitioner for facing trial for the offences under Sections 406 and 420 of the Indian Penal Code.

(2.) THE case of the complainant -opposite party No. 2 Subhash Chandra Sinha is that he is a dairy engineer and Ex -Director of RAPCOM Computer Education. Petitioner Abhay Kant Sahay is Ex - Managing Director of the Company. In January, 1998 the petitioner allured and induced him to join his business as Director for which he had to invest Rs. 4,54,000/ -. Accordingly, the complainant paid the same to the petitioner. At that time one of the Directors, namely, Arun Sharma was to quit the office and he had to transfer his share to the complainant but the said share was not transferred. The complainant was appointed as Director which was confirmed in April, 1998. On 25.7.2000 during meeting of the Board of Directors of RAPCOM Computers Limited it was resolved that since the Tata Infotech Limited had discontinued to give its affiliation to the RAPCOM Computer (P) Ltd., the Company would be amalgamated with Excelsior Communications Private Limited and the share money of the complainant amounting to Rs. 4,54,000/ - would be refunded within two years in instalments. In spite of that resolution not a single pie was paid to the complainant. The complainant sent a notice on 12.12.2002 but the petitioner did not send any reply.

(3.) IT is well settled that to attract the offence under Sec. 420 of the Indian Penal Code, there must be dishonest intention on the part of the accused from the very beginning but in this case from the complaint petition itself it appears that Opposite Party No. 2 was appointed the Director and was confirmed and he continued as such and on 25.7.2000 there was a meeting of Board of Directors in which there was a resolution to refund the share money to Opposite Party No. 2 in instalments. Annexure -13 also shows that as for some reasons Mr. Arun Sharma had to continue as Director, his share could not be transferred to Opposite Party No. 2 and it was decided to refund the share money in instalments. So, it is evident that there was no dishonest intention on the part of the petitioner muchless at the beginning to cheat Opposite Party No. 2 and no offence under Sec. 420 of the Indian Penal Code is made out against him.