IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.27571 of 2015

Arising Out of PS. Case No.-436 Year-2013 Thana- KISHANGANJ District- Kishanganj

Rakesh Kumar Poddar son of Arun Kumar Poddar, Resident of village-
Makhdumpur, P.S.- Kohra, District- Katihar

… … Petitioner/s
Versus

1. State Of Bihar

2. Subodh Kumar Deo @ Dr. Bablu, Son of Late Ram Narayan Deo, Resident
of Mohalla- Hawai Adda Road, Machh Mara, P.S.- Kishanganj, District-
Kishanganj

.. … Opposite Party/s

Appearance :

For the Petitioner/s : Mr.Radha Mohan Singh, Adv
For O.P. : Mr. Dr. Manoj Kumar, Adv
For the Opposite Party/s : Mr.Shyam Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date : 31-07-2019
Heard learned counsel for the petitioner as well as

the opposite parties.

2. This application is for quashment of order dated

02.02.2015 passed in Kishanganj P.S.Case No.436 of 2013

whereby cognizance was taken by the learned Chief Judicial

Magistrate, Kishanganj for offences under Sections 406 and Section420 of

the Indian Penal Code against the petitioner.

3. Initially a complaint petition was filed which was

registered as the aforesaid police case on the order of the

Magistrate under Section 156 (3) SectionCr.P.C. According to complaint

petition, the complainant and this petitioner as well as one Rajiv
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Kumar, who was a licensee contractor, entered into a partnership

business and a deed of partnership was signed by all of them in the

year 2009. In the year 2011, the complainant invested Rs. Nineteen

Lacs in the business of partnership and the money was provided in

installments. The Firm earned Rs. 2,50,000/-(Two Lacs Fifty

Thousand) which was share of the complainant in respect of his

money invested in the business. On 16.05.2011, the petitioner

issued a cheque to the complainant of Rs.2,50,000/- (Two Lacs

Fifty Thousand) and promised to return the principal amount

within a short time. On 01.06.2013, the complainant asked the

petitioner for refund of the aforesaid amount but the complainant

did not refund the same rather executed an undertaking. A copy of

the same is at Annexure-B to the counter affidavit. Annexure-B

reveals that the petitioner had stated that the complainant had

invested Rs. Nineteen Lacs and the said amount became

Rs.21,0500/- in the year 2011. The petitioner issued cheque of

Rs.2,50,000/- (Two Lacs Fifty Thousand) which was encashed by

the complainant and petitioner promised to refund Rs. Nineteen

Lacs within a year which was not refunded. Hence, the

complainant found himself cheated.

4. Submission of the learned counsel for the petitioner

is that the entire allegation is squarely governed by the Partnership
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Act which provides for rights and liabilities of the partner against

each other as well as against 3rd party. It further provides for

remedy to the aggrieved partners against mismanagement of the

business of the Firm by another partner and most important

remedy is dissolution of the Firm either by mutual consent or with

the intervention of the court and accounting of the profits and

liability of the Firm. This is not a case of criminal liability as in a

partnership business each of the partner has right and liability in

respect of each and every property of the Firm even a sleeping

partner bears the same rights and liabilities against the 3rd party.

5. Learned counsel for the complainant-opposite party

No.2 submits that the learned court below has found prima facie

case against the petitioner and the finding is based on material on

the record. Hence, the probable defence cannot be looked into at

this stage.

6. Since the most important ingredient of offence of

criminal breach of trust i.e. entrustment of property is missing in

this case, the cognizance for offence under Sections 406 I.P.C. is

apparently against the material on the record. For simple reason

that the complainant has categorically stated that the complainant

first entered into partnership business with the petitioner and co-

accused, a deed of partnership was singed by the partners and
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thereafter money was invested in the business. Therefore, the

claimed amount of Rs. Nineteen Lacs was not entrusted to the

petitioner rather it was invested in the business of partnership. If

the petitioner honestly admitted that the said amount of the

complainant is due with him, the complainant may recover the

same in a duly instituted civil proceeding and no criminal liability

is made out. Likewise, no ingredient of cheating is disclosed in the

complaint petition. It is not the case of the complainant that if the

petitioner would not have induced and misled the complainant he

must not have invested the money in the business. The

complainant invested the money business of partnership to earn

profit and profit of one year was already given to the complainant

which the complainant received. Therefore, conduct of the

petitioner does not depict that at any point of time, from very

inception of the agreement, he ever acted with dishonest and

fraudulent intention.

7. Therefore, the order of cognizance has been passed in

a mechanical manner without satisfying that the offences are not

disclosed in the complaint petition. Accordingly, it is held that

continuance of the criminal proceeding against the petitioner

amounts to an abuse of the process of the Court.

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8. In the result, the impugned order is quashed and

this application stands allowed.

9. It is needless to say that the complainant may

institute civil proceeding for redressal of his grievance.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.08.2019
Transmission Date 07.08.2019