PARAS NATH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application the petitioner has prayed for quashing the order dated 11-12-1997 passed by the Chief Judicial Magistrate, Smastipur whereby cognizance has been taken of the offence under Section 406/34 of the Indian Penal Code against the petitioner in Waris Nagar P.S. Case No. 58 of 1995, Tr. 755/98.

(2.) It appears that on the basis of the written report of the informant, the Branch Manager of Bihar State Financial Corporation, Bela, Darbhanga, lodged before Officer Incharge, Mithurapur Bazar Samitee O.P. a criminal case was registered being Waris Nagar P.S. Case No. 58/95. In the said report, it was alleged, inter alia, that MIs. Hindustan Nail Industries Muktapur is a firm of which the petitioner is a partner along with one Bipin Kumar Singh. The petitioner applied for loan on 28-10-1975 and a sum of Rs. 1,44,000/- was sanctioned by the Corporation. Its alleged that on 15-9-1994 the informant, Branch Manager inspected the premises of the firm and found that the machines and tools of the said firm worth Rs. 83,000/- have been removed from the premises of the said firm. It appears that the matter was investigated by the police and the record of the complaint case was then placed before the learned Chief Judicial Magistrate, Samastipur along with the coeditor. The learned Chief Judicial Magistrate, Samastipur, after perusal of the case-diary found that the petitioner was sought to be prosecuted under Section 406/34 of the Indian Penal Code. Accordingly, the learned Chief Judicial Magistrate took cognizance of the offence against the petitioner by the impugned order. The petitionerTs contention is that the impugned order was passed without ascertaining the fact that the petitioner retired from the said partnership long back in the year 1980 and all the shares, liabilities and assets of the petitioner was accepted by the other partner namely Bipin Kumar Singh who has given declaration to the Branch Manager Bihar State Financial Corporation to that effect.

(3.) A counter-affidavit has been filed by the Corporation stating inter alia, that the petitioner and other partners were allowed a sum of Rs. 1,44,000/- after execution of mortgage deed by both the partners. It is stated that the balance amount due against the firm and the partners is about Rs. 18,26,838.48/-. The further case of the Corporation is that the partnership firm removed the, machines without the permission of the Corporation and thereby they are responsible for committing criminal breach of trust and misappropriation of the assets mortgaged.