JUDGMENT :

1. Heard learned counsel for the parties.

2. The petitioner has filed the instant application for quashing of the First Information Report of Gandhi Maidan P.S. Case no. 549 of 2021 registered under sections 420, 409, 406, 462, 206, 217, 201, 34, 120B and 37 of the Indian Penal Code.

3. As per the prosecution case based on the written statement dated 20.11.2021 of Smt. Priyanka Sharma (respondent no. 5), Deputy Director of Income Tax (Inv), Unit-2(2), Guwahati addressed to the SHO, Gandhi Maidan Thana, Patna alleges inter alia that in course of search and seizure conducted on 5.10.2021 at 3rd floor, Khataruka Niwas, South Gandhi Maidan, Patna in the case of Smt. Sunil Khemka, Smt. Sunita Khemka and Smt. Shivani Khemka, order under section 132(3) of the Income Tax Act, 1961 was served by the Authorised Officer to the HDFC Bank, Exhibition Road Branch, Patna to put a stop operation on the Bank accounts, fixed deposits and Bank lockers of the assessee. It was stated that it was found that the assessee Smt. Sunita Khemka holds a Bank locker in the HDFC Bank, Exhibition Road Branch, Patna and hence a prohibitory order under section 132(3) of the Income Tax Act was imposed in the Bank locker no. 462 held in her name. It is further stated that it came to light that the restraint order imposed has been breached and violated and that Smt. Sunita Khemka operated the Bank locker no. 462 on 9.11.2021 at 11.53 a.m.. The said fact was validated by the CCTV footage and in the said operation of the locker Smt. Sunita Khemka was aided by the HDFC Bank, Exhibition Road Branch, Patna. Smt. Sunita Khemka in her statement on oath agreed that she had operated her Bank locker no. 462 on 9.11.2021 and that she was assisted by the Bank officials. The statements of Smt. Abha Sinha, Bank Manager, Abhishek Kumar, Branch Operational Manager, Deepak Kumar, Teller Banker Authoriser, all of HDFC Bank, Exhibition Road Branch, Patna was recorded on oath and they agreed that the Bank locker no. 462 was operated on 9.11.2021. Contravention of the order under section 132(3) is punishable under section 275A of the Income Tax Act, 1961 and also punishable under sections 34, 120B, 201, 204, 206, 117, 406, 409, 420, 426 and 462 of the Indian Penal Code. Thus, it was stated that Smt. Sunita Khemka in connivance with the HDFC Bank operated the Bank locker without government authorization / permission and thus it was requested that an FIR be filed and suitable action be initiated.

4. On the written complaint of the respondent no. 5 the FIR was registered, as stated above.

5. It is submitted by Sri P.K. Shahi, learned senior counsel appearing for the petitioner that from the contents of the First Information Report, an offence only under section 275A of the Income Tax Act (‘IT Act’ in short) will be made out and no offence under any of the sections of the Indian Penal Code is made out against the petitioner. It is submitted that so far as the offence under sections 406 and 409 of the Indian Penal Code are concerned, criminal breach of trust is defined under section 405 of the Indian Penal Code and the dishonest intention required therein has to be from the very inception. No such allegation having been made in the FIR, no offence under section 406 or 409 of the Indian Penal Code nor section 420 of the Indian Penal Code would be made out. Learned senior counsel referring to the letter dated 5.10.2021 of the authorised officer being an order under section 132(3) of the IT Act, 1961 submitted that the same which was address to the HDFC Bank directed the bank to stop operation immediately of the Bank lockers, Bank accounts and fixed deposits if any standing in the names of the list of persons mentioned therein, singly or jointly in terms of the provisions of section 132(3) of the IT Act. The name of Smt. Sunita Khemka appeared at sl. no. 3. However, the letter dated 1.11.2021 (Annexure-3) which was written by the respondent no. 5 to the Bank contained the subject, “rev