TMI Blog2023 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... private companies are regularly filing mischievous complaint before the court of Magistrate in similar fashions nowadays. The Hon ble Supreme court in several occasions has come heavily upon such conduct of the complainant. The Hon ble Supreme Court in the of State of Hariyana Vs. Bhajanlal [ 1990 (11) TMI 386 - SUPREME COURT ] has specifically observed that if after taking the petition of complaint and evidences therein to be true, the court find no prima facie offence being made out against the accused persons, the High Court is free to quash the proceeding u/s 482 of Cr.P.C. So considering the entire facts and circumstances of this case and considering the materials on record, there are merits to entertain the criminal revision - impugned Order passed by the Learned Magister is hereby set aside - revision allowed. - HON BLE MR. JUSTICE SUBHENDU SAMANTA. For the Petitioners : Mr. Sabyasachi Banerjee, Sr. Adv., Mr. Ayan Bhattacharya, Adv., Mr. A.P. Gomes, Adv., For the State : Mr. N.P. Agarwala, Adv., Mr. P. Bose, Adv., JUDGMENT SUBHENDU SAMANTA, J. 1. The instant criminal revision is preferred u/s 379/401 read with Section 482 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court that the impugned order passed by the Learned Magistrate is improper and palpably illegal in the eye of law. 9. Learned Magistrate has failed to appreciate the evidences on record and there by caused error in dismissing the application of the petitioner filed u/s 245(1) of the Cr.P.C. The instant criminal prosecution is purely a civil in nature it has been engineered by the opposite party in a criminal proceeding. The instant criminal proceeding filed by OP No. 2 is counter blast of the proceeding instituted by the petitioner no. 1 against the opposite party No. 2 and its directors are attending as accused before the Learned Judicial Magistrate at Alipur, South 24 Parganas alleging therein the commission of offences punishable u/s 138/141 of Negotiable Instrument Act 1998, which was registered as case no. C/7039 of 2012 pending before the Learned Judicial Magistrate second Court Alipur, South 24 Parganas. At the stage of trial. 10. The instant proceeding was only initiated to harass the present petitioner. The allegation as recorded in the petition of complaint has never made out the ingredients of offences punishable u/s 406/468/420 of the IPC. The Learned Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nverts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust . 16. There are difference between the criminal breach of trust and breach of trust civil in nature Hon ble Supreme Court in Sudhir Vs. CBI (2009) 8 SCC 1 has formulated that Act of breach of trust per se may involve a civil wrong but a breach of trust with an ingredients of mens ria would give rise to a criminal prosecution. Criminal breach of trust would inter alia, mean using or disposing of the property by a person who is entrusted with, or as otherwise domain there form. such an Act must not be done dishonestly but also in violation of any direction of law or in contract expressed or implied relating to carry out the trust . In the present case it has been alleged by the complainant company that the accused company has committed the criminal breach of trust by not supplying the raw materials. It has stated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of NI Act. The present complaint was filed after initiation of such prosecution u/s 138 of NI Act. Hon ble Supreme court in DP Gulati, Manager accounts, Jet King Infotech Limited Vs. State of U.P. and Anr. has held that Counter blust of Criminal complaint u/s 420 IPC against a criminal prosecution u/s 138 of NI Act is not maintainable. Some view was adopted by the Hon ble Supreme Court in Sunil Kr. Vs. M/s Escorts Jamuna Motors Limited. Heard the Learned Advocates perused the materials on record also perused the decision of the Hon ble Supreme Court. 20. Admittedly one criminal prosecution is pending u/s 138 of NI Act against the present complainant. The present complainant initiated the instant criminal compliant with the allegation of cheating and criminal breach of trust. The complainant has adopted a procedure in the form of criminal complaint against a company which have filed a criminal prosecution u/s 138 of NI Act. The way of approaching the court of Magistrate by the complainant company appears to be the counter blast of the criminal prosecution u/s 138 of NI Act. The private Companies approaching the court of Magistrate against some other private companies ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
