B.N.Singh "Neelam", J.

1. This application under Sec. 482 of the Code of Criminal Procedure (for short the Code) is so filed by the petitioners challenging the order dated 6.1.98 so passed in Complaint Case No. 1388/97 preferred by one Raghunath Prasad, figuring here as Opp. Party No. 2, in which the learned Court below, as detailed in the impugned order, a copy of which is filed, finding prime facie material has taken cognizance of the offence against the accused-petitioners under Secs. 406 and 420/120 B of the Indian Penal Code issuing summons against the petitioners under the provisions of Sec. 204 of the Code.

2. By going through the complaint, petition, a copy of which is filed marked as Annexure-1, in a nut shell the allegations so put against the present petitioners are that the accused-persons are concerned with M/s. Gujarat Fertilizers and Chemicals Ltd., in short hereinafter to be referred as GSFC and Opp. Party No. 2 was so appointed as C & S (consignment Stockiest) as to get supply of their products i.e. urea in brand name "Sardar" and to that effect an agreement was also so entered into between the parties on 21.2.95, a copy of which is also available for perusal but the accused-persons could not supply the target of the consignment which would have been the source of income for the complainant to gain commission out of the said allotment and supply of the product agreed upon to be despatched to the appointed C & F. i.e., the complainant. It was at one occasion some supply is said to have been made but after long persuasion when attempt was so made by the complainant failed to have another consignment and in that course, as per the complainant even the establishment of C&F was so utilized by way of approaching the office of the complainant by the GSFC as a result of which the complainant claimed to have been cheated and there was criminal breach of trust even on the part of the concern GSFC and it was so done because of the accused-persons entering into criminal conspiracy, the conduct of the accused-persons thus as claimed led the complainant as to incur monetary loss to a great extent as detailed in the complaint-petition and hence, the prayer was as to take legal action against them, i.e., the accused-persons so detailed in the complaint-petition for their cheating the complainant.

3. Learned Counsel for the petitioners/accused has submitted that before the learned Court below there was no prime facie material as to take cognizance of the offence since by the plain reading of the complaint-petition, it will transpire that no offence was so matte out with regard to the present petitioners-accused m any way cheating the complainant or entering into any criminal conspiracy and there was also nothing as to misappropriate the property so entrusted. Since no offence was so made out whatsoever it is pointed out that the learned Court below has thus erred in issuing summons under the provisions Sec. 204 of the Code. The second limb of argument of learned Counsel for the petitioners/accused is that while passing the order under challenge, even the learned Court below had not applied its judicious mind, furthermore any breach of contract can on no account be said to be a breach of trust and it is also pointed out that the learned Court below had no jurisdiction as. to take cognizance of the offence in the background of the Clause 30 of the agreement so entered into between the parties. Reference is also made to Clause (sic) 10, 17 and 19 of the said agreement and in that background it is submitted that for any breach of contract which was so entered into in the shape of deed of agreement so prepared, filing of the criminal proceedings was not justified and that too in the background of the specification for the agreement so indicated that the matter, would go to arbitrator in case of any dispute arising and finally to be adjudicated upon by the competent Court in the city of Baroda and by no other Courts.

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