The offense of criminal breach of trust under section 406 IPC is committed when a person entrusted with property misappropriates or converts it to his own use with dishonest intention.

( 1 ) THE hearing arises from an application under section 397/401 read with section 482 Cr. PC filed by the petitioners praying for quashing the criminal proceeding being Case No. C-259/2004 pending before the Court of learned Judicial Magistrate, 9th Court, Alipore and for setting aside the order dated 20. 09. 2004 rejecting the prayer for exemption from their personal appearance under section 205 Cr. PC.

( 2 ) THE circumstances leading to the above application are that O. P. No. 2 firm purchased poultry feed supplement, worth of Rs. 2,25,134/- from the petitioners' company M/s. Harshawardhan Laboratory Pvt. Ltd. and in part discharge of liability issued a cheque dated 10. 02. 2003 for Rs. 1,72,974. 34/-drawn on State Bank of Mysore Rashbehari Avenue Branch, Kolkata, dihonoured with the remark "payment stopped by the drawer". The company issued a notice dated 14. 03. 2003 requesting for payment of the amount, but no amount was paid by O. P. No. 2 firm, for which the company filed a complaint before the Court of learned Chief Judicial Magistrate, Indore under section 420 IPC and section 138 N. I. Act against the said firm and its partners, whereupon cognizance was taken under section 138 N. I. Act and process was issued against O. P. No. 2 firm and one Dwijen Banerjee. As a retaliatory measure the said firm lodged a complaint being Case No. C-259/ 2004 under section 409/420/120b,\34 IPC before the Court of learned Chief judicial Magistrate, South 24-Parganas at Alipore inter alia alleging that the firm paid a total sum Rs. 1, 25,000/- as security deposit for super distributorship of institutional products of the company in the Eastern Region. It was arranged between the firm and the accused persons that farmer's products of the company would be sold to the firm but in reality the same would be a transaction between the company and accused No. 3 M/s. Rare remedies. The company raised a bill for the transaction amounting to Rs. 2,00,474. 34, out of which accused No. 3 was liable to pay Rs. 94,500/ -. The firm being induced by misrepresentation of petitioner No. 2 Dr. Prativa and the said accused No. 3 accepted the bill and on simple belief of realizing the said amount of Rs. 94,500/- from accused No. 3 issued two cheques for rs. 1,72,974. 34 and Rs. 27,500/- in favour of the company. As the cheque given by accused No. 3 to the firm returned unpaid by banker and accused no. 3 failed to hand over the amount of Rs. 94,500/-, the firm instructed its banker to stop payment of Rs. 1,72,974. 34, for which the company instituted the said proceeding under section 138 N. I. Act against the firm. The company paid interest till December, 2002 but subsequently stopped payment of interest as also stopped business with the firm without refunding the security deposit of rs. 1,25,000/- along with accrued interest thereon to the tune of Rs. 16,250/ -. The facts disclosed in the complaint do not constitute any offence under section 406/120b IPC.

( 3 ) THE learned Chief Judicial Magistrate, South 24-Parganas at Alipore after taking congnizance transferred the case to the Court of learned Judicial magistrate, 9th Court, Alipore who upon examining witnesses and finding a prima facie case under section 406/120b IPC issued summons against the petitioners on 18. 02. 2004. The petitioners entered appearance through their learned Advocate and prayed for exemption from their appearance under section 205 Cr. PC which was rejected vide order dated 20. 09. 2004.

( 4 ) BEING aggrieved by, and dissatisfied with, the continuance of the proceeding and the said order of rejection the petitioners have come up before this Court.

( 5 ) MR. Ganguly, learned Counsel for the petitioners, contended that the that expression "security deposit" indicates in case of failure of payment the amount in security deposit will be applied for adjustment and so when the liability of O. P. No. 2 to pay the petitioners an amount of Rs. 1,05,974/- is un