Manoj Kumar Gupta @ Manoj Kumar vs The State of Bihar and Another

Madhavendra Saran, J.—This application u/s 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 5.12.2003 passed by Shri S.K. Sinha Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1690(C) of 2003 whereby and whereunder he has taken cognizance against the petitioner for offence punishable under Sections 406, 420 and 120B of the Indian Penal Code. The case of complainant/opposite party no. 2 Amitabh Kumar is that he is the proprietor of a concern named Amit Publicity situated at Patna. He is engaged in the business of advertisement and publicity. It is said that on 18.11.2002 petitioner Manoj Kumar Gupta @ Manoj Kumar alongwith other co-accused went to the office of the complainant and placed order to publish the product of M/s Deepa Harbal Pvt. Ltd. of Bhopal in different daily news papers publishing from Bihar and Jharkhand. An agreement to that effect was also made between the complainant and M/s Deepa Harbal Pvt. Ltd. One of the co-accused named Tapus Kumar Banerjee placed work order to the complainant on behalf of the company. The complainant thereafter gave publicity in different daily newspapers published from Bihar and Jharkhand and submitted cost of publication through invoice raised by the complainant in the name of M/s Deepa Harbal Pvt. Ltd. The total cost came to Rs. 1,65,094/-. The Company M/s Deepa Harbal Pvt. Ltd. in pursuance of the invoice paid Rs. 20,000/- to the complainant through the petitioner Manoj Kumar Gupta and thereafter no payment on that account was made to the complainant. It appears that the complainant was examined on solemn affirmation and during inquiry u/s 202 of the Code two witnesses were examined and the learned Magistrate after being satisfied that there was sufficient ground for proceeding further against the petitioner and other accused persons, took cognizance and directed for issuance of summons against them. Against the said order dated 5.12.2003 the petitioner has preferred the present application for quashing before this Court.

It has been contended that the petitioner is one of the partner of M/s Gupta Enterprises which has been appointed as distributor to sell the product by M/s J.K. Pharma of Calcutta and not by M/s Deepa Harbal Private Ltd. vide Annexure-2 of the application. He further contended that the annual agreement with respect to the publicity has been made between the complainant and M/s Deepa Harbal Pvt. Ltd., Bhopal and Tapas Kumar Banerjee executed the agreement on behalf of M/s Deepa Harbal Pvt. Ltd. vide Annexures-3 and 3/A. Learned counsel further contended that so far payment of Rs. 20,000/- is concerned this amount has been paid to the complainant on the basis of letter of advice issued by M/s Deepa Harbal Pvt. Ltd. because the petitioner was directed by letter dated 4.12.2002 (Annexure-4) to pay Rs. 47,000/- to the complainant and collect receipt thereof and forward the same to the consignee agent M/s J.K. Pharma at Calcutta and this shows that the petitioner-company has nothing to do with it. He lastly contended that allegation made in the complaint petition is of civil nature and the agreement of publicity has been executed between the complainant and M/s Deepa Harbal Pvt. Ltd. and as such petitioner is not liable for any offence. Learned counsel in support of his contention placed reliance on the following decisions:--

(1) 1999 (1) PLJR 393

(2) 1999 (1) PLJR 561

Learned counsel for opposite party no. 2 on the other hand supported the impugned order and submitted that an 18.11.2002 at the time when the order was placed to publish the product of M/s Deepa Harbal Pvt. Ltd. in different newspapers the petitioner was present alongwith other two accused. The petitioner introduced himself as Officer of M/s Deepa Harbal Pvt. Ltd. at the time of placing the order for advertisement. The petitioner and other two accused on telephone got the placement order confirmed by other accused persons. He further submitted that the petitioner in response to the latter issued by the complainant paid Rs. 20,000/- through cheque to the complainant. Learned counsel further pointed out that the petitioner''s firm vide Annexure-2 dated 18.11.2002 became wholesaler and collecting agent of M/s Deepa Harbal Pvt. Ltd. and therefore, the petitioner became interested in promoting sale of the product of M/s Deepa Harbal Pvt. Ltd. Learned counsel contended that it cannot be accepted that the petitioner was not a party to the alleged occurrence.

It appears that on 18.11.2002 the firm of the petitioner named M/s Gupta Enterprises became wholesaler and collecting agent of M/s J.K. Pharma, Calcutta. Now as per the allegation on 18.11.2002 the petitioner alongwith Tapas Kumar Banerjee and S.K. Rai of M/s Deepa Harbal Private Ltd. went to the office of the complainant and placed order to publish the product of M/s Deepa Harbal Pvt. Ltd., Bhopal in daily newspaper published from Bihar and Jharkhand. Then according to the complaint petition on telephone they got placement order confirmed by other accused persons. The complainant as per allegation on their assurance gave publicity in daily newspapers and submitted publication bill which came to Rs. 1,65,094/- and in compliance to the said bill the complainant paid Rs. 20,000/-.

Whatever may be the merits in the argument of opposite party no. 2, but at this stage it will not be proper for this Court to express any opinion in this regard. The fact however, remains that these submissions made on behalf of opposite party no. 2 are not without any weight.

In Bishundeo Prasad Vidyarthi Vs. The State of Bihar and Shri Raghuvansh Prasad Singh, it has been observed that every breach of trust gives rise to a suit for damages but only when there is evidence of a 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 breach of trust in the absence of mens rea cannot legally justify a criminal prosecution. Then in the case of Girish Kumar @ Girish Chandra and Another Vs. State of Bihar, this Court observed that in absence of averment made in the complaint that the complainant was made to part with the property with dishonest intention or that the complainant was induced to part with any other property, such matters are of a civil liability. The decision reported in 2002(2) PLJR 45 has no application in this case.

In the aforesaid facts and circumstances, at this stage of the case, I do not find any error in the impugned order dated 5.12.2003. Learned Magistrate has rightly taken cognizance against the petitioner.

This application accordingly stands dismissed. However, the petitioner will be at liberty to raise his grievance before the court below at the appropriate stage of tha case