- (1.) Heard learned counsel for the applicants and the learned Additional Government Advocate for the State. None appears for the opposite party No. 2.
(2.) In this proceeding under Section 482, Cr.P.C. the order dated 1/07/1996 of the learned Judicial Magistrate I, Etawah taking cognizance of the offence under Section 420, 406, I.P.C. is under challenge. The applicants (hereinafter referred to as the 'accused persons') are partners of the firm. M/s. Keshari Traders, G.T. Road, Rajganj in the district of Hazari Bagh (Bihar) and they deal in consumer goods. Accused Ram Lakhan Prasad, one of the partners, it is alleged approached the complainant, opposite party No. 2 herein on 1-8-1995 and requested to supply five truck-load fo flour inducing him to believe that price would be paid on receipt thereof. Accordingly, the complainant sent flour on different dates, but received payment only in respect of the first consignment. He requested the accused persons to pay up the balance amount and the same having not been heeded to, led him to file the case which was registered as Complaint Case No. 175 of 1996. The learned Magistrate upon examination of the complainant and the witnesses was prima facie satisfied that a case under Sections 420 and 406, I.P.C. was made out and accordingly cognizance of the said offences.
(3.) Learned counsel appearing for the accused persons contended that a reading of the complaint as well as the statement of the witnesses including the complainant do not reveal that the accused persons had any intention to deceive the complainant so as to bring the case within the ambit of Section 420, I.P.C. So far as the Section 406, I.P.C. is concerned, he urged that even assuming the prosecution as true, it being not the case of the complainant that he had entrusted the goods to the accused persons which they dishonestly misappropriated or converted to their own use, no offence of criminal breach of trust can be said to have been made out against them. Lastly, he submitted that this being purely a civil dispute criminal proceeding was not maintainable and in support thereof he relied upon a decision of the Apex Court in the case of Nageshwar Prasad Singh alias Sinha v. Narayan Singh , 1998 Cr R 625 : (1998 AIR SCW 4007).;