A mere breach of contract does not constitute an offence under section 405 I.P.C. without the element of entrustment.

JUDGMENT :

Heard Mr. Saurav Kumar, learned counsel for the petitioners, Mr. Santosh Kr. Shukla, learned counsel for the State and Mr. Rishav Kumar, learned counsel for the O.P. No.2.

2. The present petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 29.05.2012 passed in connection with C/1 Case No. 47 of 2011, pending in the Court of learned Judicial Magistrate, Ist Class, Chaibasa.

3. The O.P. No. 2 has filed the complaint case alleging therein that he is engaged in processing of Iron Ore and its marketing.

It was further alleged that the accused persons contacted the complainant at Barajamda and offered to purchase size Iron Ore and when such offer was accepted, it was agreed that the price of iron ore will be paid either in advance or at the time of lifting of materials and it is stated that initially the accused persons complied with the terms of the supply but during the supply of iron ore effected by the complainant to the accused persons during the last week of month of April, 2010 represented that they are suffering a financial crunch and therefore they would make the payment after iron ore reaches their plant and on such representation, the complainant supplied iron ore to the tune of Rs. 7,13,665/- but in spite thereof, the payment was not received.

4. Mr. Saurav Kumar, learned counsel for the petitioners submits that in view of complaint petition learned court has taken cognizance by order dated 29.05.2012 under section 406 I.P.C. He submits that learned court has not taken cognizance under section 420 of I.P.C. He further submits that ingredient of section 406 of I.P.C. is not made out against the petitioners. He further elaborates his argument by way of submitting that in the complaint petition the complainant has admitted that the petitioners were making payment in advance but it is alleged that inspite of supply, during the last week of April, 2010 no payment was made, thus this cannot be said that there is any dishonest intention since very inception that is why the learned court has not taken cognizance under section 420 of I.P.C. He further submits that for a business transaction and for a civil wrong if any, criminal case is put in motion, which is against the mandate of law.

5. On the other hand, Mr. Rishav Kumar, learned counsel for the O.P. No. 2 submits that admittedly the iron ore was supplied to the petitioners but payment from last week of April, 2010 has not been made and in that view of the matter entrustment is there and if entrustment is there, criminality is made out. He submits that in view of the matter the entire criminal proceeding may not be quashed by this Court which is subject matter of trial.

6. Mr. Santosh Kr. Shukla, learned counsel for the State submits that looking into solemn affirmation and enquiry witnesses, learned court has taken cognizance.

7. In view of above submission of the learned counsel for the parties, the Court has gone through the contents of the complaint petition as well as order taking cognizance and finds that there is business transaction between the petitioners and O.P. No. 2. It was admitted in the complaint petition that petitioners were abiding by all terms and conditions of contract however, from the last week of April, 2010 the payment was not made for supply of iron ore and the petitioners requested that due to financial exigency, supply may be continued and the payment shall be made later on.

8. In view of above, it transpires that there is business transaction and iron ore was supplied by the O.P. No. 2. Payment was done in terms of contract by the petitioners to the O.P. No.2. However, from the last week of April, 2010 payment was not made for that complaint was filed. It appears that for a commercial transaction criminal case has been filed. Offence of criminal breach of trust has been defined under section 405 I.P.C. and same is punishable under section 406 I.P.C. In order to bring offence of criminal brea