The nature of the allegations and circumstances must be considered to determine if the actions constitute criminal breach of trust under the Indian Penal Code.

By the Court.-

Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.2.

2. Initially this case was filed for quashing of the FIR of Chandrapura P.S. Case No. 77 of 2008 instituted under Sections 406 and 420 of the Indian Penal Code. Subsequently, on submission of the charge sheet, cognizance of the offences punishable under Sections 406 and 420 of the Indian Penal Code was taken, vide order dated 28.10.2009. That order was also challenged.

3. The case of the complainant is that the complainant, a company, namely, Power Mach Project Private Limited entered into a contract with BHEL for executing certain work. On work being awarded, the complainant entered into an agreement with M/s. Sagar Enterprises to which the petitioner is the proprietor for supplying labourers for executing the work. In course of execution of work, whenever money was required it was given when promises was made that whenever money would be paid of other works, it would be returned. Accordingly, it was given by the complainant under receipt time to time and thereby a sum of Rs. 14,14,527/- was given but the petitioner thereafter stopped supplying labourer and left Chandrapura where the work was being executed.

4. Further it has been alleged that earlier also the petitioner had taken a sum of Rs. 11,45,714/- which he never returned. In spite of repeated request being made for returning the money, when it was not returned a complaint was lodged as Complaint Case No. 71 of 2008. The said complaint was sent before the concerned police station under Section 156(3) for its institution and investigation. Accordingly, Chandrapura P.S. Case No. 77 of 2008 was registered under Sections 406 and 420 of the Indian Penal Code.

5. Mr. Prashant Pallav, learned counsel appearing for the petitioner submits that accepting the entire allegation to be true that this petitioner had taken money for executing the work and the work was not executed, the case will never fall within the mischief of the provision of Section 420 or Section 406 of the Indian Penal Code and therefore, the Court has committed illegality in taking cognizance of the offences.

6. It was further submitted that similar kind of dispute had arisen earlier wherein it had been alleged by the complainant that the petitioner had taken money as loan for executing the work but that was not executed. For that, a case had been lodged against the petitioner. In that case, when cognizance was taken, a petition for discharge was filed. The Court though discharged the petitioner from the offence under Section 420 but did not discharge the petitioner from the offence under Section 406 of the Indian Penal Code and therefore, the petitioner filed a revision application before this Court, vide Cr. Rev. No. 634 of 2008. That revision application was dismissed and against that order, when the petitioner moved before the Hon’ble Supreme Court in Cr. App. No. 2121 of 2010, the impugned order was set aside and thereby the petitioner was discharged from the offence under Section 406 of the Indian Penal Code.

7. Similar is the situation here and therefore, the order taking cognizance as well as entire criminal proceeding is fit to be quashed.

8. As against this, Mr. Atanu Banerjee, learned counsel appearing for the complainant submits that the allegation what has been made in the instant complaint petition/FIR is quite different from the allegation which had earlier been made which gave rise to Cr. App. No. 2121 of 2010 and therefore, it cannot be a ground for quashing of the order taking cognizance.

9. In this regard. it was further submitted that there it was the case of the complainant that money had been advanced to the petitioner as loan which was not returned and therefore; it was never considered to be a case of criminal breach of trust but here the case of the complainant is that the petitioner on being awarded work by the complainant took money to execute the work on the prem