- (1.) This revisional application under section 482 of the Code of Criminal Procedure on behalf of the petitioners, is directed for quashing of the proceeding being G.R. Case No. 1699 of 1995 under sections 406/420/120-B I.P.C. pending before the Ld. S.D.J.M. Howrah arising out of Malipanchghora P.S. Case No. 115/95 dated 15.8.95 under sections 406/420/120-B I.P.C. The Case is still at the stage of investigation and involves allegations of criminal breach of trust and cheating of materials worth Rs. 18,32,370/- (Rupees Eighteen lakhs thirty two thousand three hundred seventy only).
(2.) This court by order dated 5.1.96 on the revisional application while directing the revisional application to be heard as contested application was pleased to stay further proceedings of the aforesaid G.R. Case No. 1699 of 1995 till further orders in respect of the petitioners Nos. 1, 3 and 5. Thereafter the petitioner Nos. 2 and 4 filed petition for Special Leave to Appeal being Special Leave to appeal (Crl.) No. 304/96 in the Hon'ble Supreme Court of India against the order of this Hon'ble Court refusing the prayer for stay of further proceeding in respect of the petitioner Nos. 2 & 4 and the Apex Court, by order dated 5.8.96 was pleased to allow the Special Leave Petition and direct that in the revision case pending before the High Court there should also be stay in favour of the petitioners before the Apex Court, who are the petitioners Nos. 2 & 4 in the revisional application before this Court.
(3.) Heard the Learned Advocates for the parties. Perused and considered the materials on record. Mr. Pradip K. Ghosh Learned Senior Counsel appearing with Mr. Alok Mitra learned Advocate on behalf of the petitioners submitted that the allegation of criminal breach of trust against the petitioners is misconceived from the facts mentioned in the F.I.R. itself and cited the decision Velti Raghabji Patel vs. The State of Maharashtra, 1965 AIR(SC) 1433 wherein it has been decided by the Apex Court that before a person can be said to have committed criminal breach of trust within the meaning of section 405 I.P.C., it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use and a partner has undefined ownership along with other partners over all the assets of the partnership and if he chooses to use any of them for his own purposes he may be accounted civilly to the other partners but he does not hereby commit any misappropriation. It is further submitted that even assuming prima facie all the allegations in the complaint to be true they merely amount to a breach of contract and cannot give rise to criminal prosecution as there is nothing in the complaint to show that the petitioners had dishonest or fraudulent intention at the time the complainant parted with the money nor does the complaint indicate that the petitioners had induced the complainant to pay them the amount parted with and the decision (Hariprasad Chamaria vs. Bishnu Kumar Surcklos & Ors., 1974 AIR(SC) 301) was cited in support of that submission. It is further submitted that a civil suit is already pending in respect of the same allegation before the Learned Civil Judge (Senior Division) Ahmedabad and as such the instant proceeding is not maintainable in law.;