Hon’ble Abhai Kumar, J.—Heard Sri Anil Kumar Bajpai and Sri Tanmay Agarwal, learned counsel for the applicant, Sri Rajneesh Dubey, learned counsel for the opposite party No. 2 and perused the record.

This petition under Section 482 Cr.P.C. has been filed with the prayer to allow this petition and quash the entire proceeding of Criminal Case No. 186 of 2009 arising out of Complaint Case No. 1735 of 2008 (Tarkeshwar Singh v. Manish Goel), under Section 406 I.P.C., Police Station Kotwali, District Azamgarh pending in the Court of Additional Chief Judicial Magistrate, Court No. 10, Azamgarh as well as to quash the impugned summoning order dated 15.9.2009 passed by learned Additional Chief Judicial Magistrate, Court No. 10, Azamgarh.

Brief facts of the case are as follows:

2. A complaint case was filed by opposite party No. 2 against the applicant under Section 406 I.P.C. The statement of opposite party No. 2 was recorded under Section 200 Cr.P.C., whereas the statement of witnesses were recorded under Section 202 Cr.P.C. and the trial Court after finding prima facie case against the applicant, summoned the applicant under Section 406 I.P.C. for facing the trial. The ornament of opposite party No. 2 was stolen from the shop of the applicant for which an FIR was also got registered by the applicant on 12.3.2006 regarding the incident which took place in the intervening night of 11.3.2006 wherein it has been specifically provided that ornaments of Tarkeshwar Singh amounting to Rs. 20,000/- is being also stolen. It is admitted to the applicant that money is being kept with the mother of applicant (who is since dead) and at no point of time the applicant has denied keeping the ornament of opposite party No. 2.

3. It is submitted by learned counsel for the applicant that dispute between the parties is squarely civil in nature. It is admitted fact that jewellery is being kept with the mother of applicant. It is also admitted fact that licence of money lending was in the name of mother of applicant, whereas the applicant used to sit in the shop on behalf of his mother. It is admitted that jewellery is being kept with the applicant and same is being stolen from the shop of the applicant and there is specify narration of the fact that jewellery of opposite party No. 2 is also being stolen, then it cannot be said that offence under Section 406 I.P.C. is made out and there is no criminal breach of trust. A criminal proceeding is undertaken to pressurize the applicant to return the money from the prevalent rate at the time of making the FIR. It is also submission of learned counsel for the applicant that Rs. 20,000/- were given to the opposite party No. 2 when jewellery is being kept with the applicant and opposite party No. 2 is liable to pay the interest upon the money given to the opposite party No. 2. It is also contention of learned counsel for the applicant that applicant is still willing to pay the amount of Rs. 20,000/-, which is value of ornament kept with the applicant. In case it is acceptable to the opposite party No. 2, then the applicant is also ready to give-up the interest that would accrue on the lending amount.

4. Whereas the learned counsel appearing for the opposite party No. 2 as well as learned A.G.A. opposed the contention of learned counsel for the applicant and submitted that usually 50% of the amount is being disbursed of the jewellery that is being kept with the money lender and it can very well be said that value of jewellery was minimum of Rs. 40,000/- at the time of it is being kept with the applicant.

5. At this point of time, it is submitted by learned counsel for the applicant that applicant is ready to give Rs. 40,000/- to the opposite party No. 2 in lieu of jewellery that is being kept with the applicant and he is also ready not to claim the interest upon the lending money.

It is admitted fact that jewellery is being kept with the applicant under the licence, which was in the name of mother of applica