RAJENDRA GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners, who happen to be father and son by relationship, live in Delhi and are the stockists of motor parts. They are sought to be prosecuted through Complaint Case No. 1305(C) of 2005 wherein cognizance has been taken under Section 406 I.P.C. Through this application the petitioners have prayed for quashing of the entire criminal proceedings including the order dated 9.3.2006 whereby cognizance had been taken by Sri S.K. Mishra, Judicial Magistrate, First Class, Saharsa. The complainant, one Amit Kumar Singh, claiming to be a small shopkeeper of motor parts in Saharsa, impleaded herein as O.P. No. 2, filed the aforesaid complaint on 10.11.2005 inter alia alleging that some five months back the complainant had purchased motor parts worth Rs. 5,000/ - from the shop of the accused persons and had also discussed the possibility of supply of motor parts etc. in future. It is further alleged that on 4.11.2005 at about 2 P.M. both the accused persons came to the shop of the complainant where orders worth Rs. 50,000/ - of motor parts were placed with them and the aforesaid sum was also handed over whereupon the accused persons assured to dispatch the same within 2 days' time but when on 8.11.2005 no information was received from the accused persons regarding the supply of motor parts the complainant on 9.11.2005 contacted the accused persons over telephone and was given to understand that there being shortage of the goods the same would be sent in 3 -4 months' time whereupon the complainant claims to have made a request to the accused persons to return the money since he happened to be a small shopkeeper and had borrowed the money on interest. It is alleged that the accused persons became angry and used abusive language and also refused to return the money. It has been claimed that the accused persons have cheated him. It has also been alleged that on inquiries made from other shopkeepers he had learnt about the nefarious activities of the accused persons.

(2.) IT has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case. In this connection, it was sought to be submitted that the daughter of the petitioner No. 1 and sister of petitioner No. 2, Ashima Gupta, was married to one Akash Sagar Gupta whose maternal home (nanihal) is in Saharsa and his maternal uncles, Narayan Bhimsariya and Mahadeo Bhimsariya, having a business of consumer commodities in Saharsa were very influential people and had set up O.P. No. 2 and his witnesses in order to pressurize Ashima Gupta to give divorce to Akash who had colluded with his internal uncles to get filed this false complaint having lost matrimonial proceedings in Delhi Courts. It was sought to be pointed out that several cases had been filed by Ashima Gupta against her husband to avoid the break down of her marriage and the looming danger of divorce and even after the maintenance of Rs. 18,000/ - per month was directed to be paid to Ashima Gupta, Akash in order to avoid the same approached the Delhi High Court where CM(M) 1616 of 2004 and C.M. Appeal 14987 of 2004 filed by him was dismissed.

(3.) TO attract the mischief of Section 406 I.P.C., it must be shown that the petitioners misappropriated the property and converted it to his own use. In the instant case, it is not a case of the money advanced by the complainant being misappropriated by the accused persons. If the complainant's story is to be believed then it was only because of short supply of the articles demanded that the supply of articles ordered for had not been complied with and mere refusal to return the money which was handed over to the accused would not constitute an offence under Section 406 I.P.C.