Mere non-repayment of a loan does not constitute criminal breach of trust under Section 406 IPC.

1. - The instant misc. petition has been preferred by the petitioner assailing the order dated 29.10.2013 passed by the learned Additional Sessions Judge, Raisinghnagar in revision whereby the revisional court affirmed the order dated 3.7.2013 passed by the learned Judicial Magistrate 1st Class,, Raisinghnagar in Cr.Case No.119/2011 whereby whilst rejecting the application preferred by the petitioner under Section 91 Cr.P.C., the trial Judge directed framing of charges against him for the offences under Sections 420 and 406 IPC.

2. Facts in brief are that the complainant respondent No.2 Ram Lal filed a complaint in the court of the learned Judicial Magistrate, Raisinghnagar against the petitioner with the allegations that the petitioner procured a sum of Rs. 45,000/- from the complainant by giving a fraudulent inducement and thereafter, gave a cheque of the said amount to the complainant towards repayment. When the cheque was presented to the bank, initially it was returned back with the remark that the funds were insufficient. Thereafter, the complainant upon receiving an assurance from the accused, again presented the cheque to the bank but by that time, the accused closed his bank account. The complaint was forwarded to the Police Station Muklawa under Section 156(3) Cr.P.C. where an FIR No.58/2009 was registered and investigation commenced. The Investigating Officer after completing investigation filed a charge-sheet against the petitioner for the offences under Sections 420 and 406 IPC. The trial Court vide order dated 3.7.2013 directed framing of charges against the petitioner for the offences under Sections 420 and 406 IPC. The petitioner assailed the order framing charge by filing revision which too was dismissed by learned Additional Sessions Judge, Raisinghnagar as stated above.

3. The petitioner has now approached this Court by way of the instant misc. petition seeking quashing of the order framing charges.

4. Shri S.L.Jain learned counsel for the petitioner vehemently contended that none of the ingredients of the offence under Section 406 IPC were made out in the instant case. He submitted that the complainant simply advanced a cash loan to the petitioner. Merely because the loan was not repaid, the set of facts would not be covered under the offence of criminal breach of trust. He further submitted that ex-facie, the ingredients of the offence under Section 420 IPC were also not disclosed in the case because as per him the mere closure of the bank account by the accused would not make his intention fraudulent right from the inception of the contract so as to bring the provision of Section 420 IPC applicable. Thus, he prayed that the impugned order be quashed and the accused be discharged.

5. Per contra, Learned Public Prosecutor and the learned counsel for the complainant have vehemently opposed the submissions advanced by the petitioner's counsel. Learned counsel for the complainant respondent No.2 has placed on record a copy of the order dated 15.3.2011 passed by this Court in Cr.Misc. Petition No.922/20109 filed by the petitioner wherein the petitioner assailed the FIR NO.58/2009 registered against him in this matter. This Court whilst deciding the said misc. petition held that the petitioner acted fraudulently in this matter. He had given a cheque to the complainant for clearing the dues. During the validity period of the cheque in question, the petitioner closed his bank account. Consequently, when the complainant presented the cheque for encashment, the bank dishonoured the same with the remark that the account was closed. In this background, this Court recorded a specific finding that the petitioner's intention was to defraud the complainant. The complainant's counsel thus submitted that as this Court has already concluded in this matter that the petitioner defrauded the complainant, there cannot be any justification to interfere in the order framing charge. Learned Public Prosecutor also supported the