- (1.) The Judgment of the Court was as follows : In this application under Section 482 of the Code of Criminal Procedure, the petitioner sought for quashing of the complaint case No. C-5250 of 2001, under Section 406/34 of the Indian Penal Code, now pending before the learned Metropolitan Magistrate, 16th Court, Calcutta, as also the order of taking cognizance.
(2.) Mr. Subrata Bose, the learned Advocate appearing on behalf of the petitioners sought for quashing of this case on the following grounds, a) Accepting the allegations as made in the petition of complaint along with those made in the initial depositions in their entirely and the same to be true, no case of criminal breach of trust can be said to have been made out against the petitioners. b) When by hypothecation of goods any credit facilities by way of overdraft is obtained from bank in such case disposal of hypothecated goods by the debtor does not amount to an offence of criminal breach of trust and at best bank will be entitled to take civil action for damages against the debtor for a breach of contract. c) Besides the allegations, the goods were hypothecated by way of security to cover up credit facilities there is no allegation of entrustment, i.e. the transfer of ownership or possession as such there cannot be any question of criminal breach of trust in respect of those properties. In support of his contention Mr. Bose, relied on a decision of the Hon'ble Apex Court in the case of Central Bureau of Investigation, SPE, SIU (X), New Delhi v. Duncans Agro industries Limited, Calcutta reported in AIR 1996, Supreme Court 2452 : 1996 C Cr LR (SC) 320.
(3.) Mr. Bose further submitted before this Court that in any event his client is regularly making payment towards the liquidation of the cash credit he obtained from the bank and produced the relevant documents showing acknowledgment of receipt of payment by the complainant banker on different dates during the period from January 2002 to November 2006 and at the initial stage there was no default in payment of regular instalments. The Learned Advocate of the complainant banker has not disputed the same. Those documents be kept with the records. He also submitted that bank has also filed necessary application for recovery of the loan granted to the accused persons before the Bank Debt Recovery Tribunal and the same is pending.;