IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35729 of 2006 SANJAY KUMAR SINGH Versus THE STATE OF BIHAR & ANR ----------- For the Petitioner: Mr Shri Prakas Srivastava, Advocate For the State : Mr Mukund Mohan Jha, AC to SC 7 For O.P.No. 2 : r Shardanand Mishra, Advocate -------- 8. 17.03.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State as also the learned Counsel for opposite party no. 2. The petitioner is aggrieved by the order of cognizance dated 18.7.2000 in Complaint Case No. 598C/2000 under Section 420 of the Penal Code passed by the learned Judicial Magistrate, lst Class, Patna. Learned Counsel for the petitioner submits that reading the complaint as it is no criminal offence under Section 420 of the Penal Code is made out. At best, the allegations constitute a breach of terms of partnership agreement between the parties by failure on the part of the petitioner to draw up the accounts and share the profits. The opposite party no. 2 has already filed Money Suit No. 41/2000 for rendition of accounts. The complaint case has been filed on 22.4.2000 while the Money Suit has been filed four days latter on 26.4.2000. The institution of the complaint case was nothing more than a coercive measure to expedite settlement of accounts. Learned Counsel for opposite party no. 2 submitted that the petitioner had persuaded him to invest approximately Rs. 11 lacs in the business. Opposite party no., 2 therefore had a legitimate claim to 50% share of profit. The petitioner by refusing to draw up accounts obtained wrongful gain causing wrongful 2 loss to the opposite party no. 2. Whatever be the defence of the petitioner of a civil dispute can adequately be considered in the trial itself and there is no justification for this Court to interfere at this initial stage. The complaint alleges that in pursuance of an auction notice for lifting of sand the petitioner and opposite party no. 2 entered into an agreement to bid for the same. This agreement was reduced in writing. Both agreed to have equal share of 50% each in the profit. The accounting was to be done on every day. But the petitioner persuaded opposite party no. 2 to do the accounting once in a month which the opposite party no. 2 agreed. In February 2000 when the opposite party no. 2 requested the petitioner to draw up the accounts, the petitioner evaded to do so on one pretext or other. The petitioner thus retained the benefits of the business for which an informatory petition was filed by the opposite party no. 2 before the CJM on 21.4.2000 notwithstanding which the petitioner refused to draw up the accounts. On these allegations was founded the complaint of cheating and misappropriation against the petitioner. What plainly surfaces is a voluntary contractual relationship between the parties of their own free volition. The breach of certain conditions of the partnership, when subsequently accounts were not being drawn up withholding the share of profits of opposite party no. 2.The allegations therefore constitute a subsequent act on part of the petitioner by his breach to abide by the terms of the agreement. There are no allegations in the complaint that the petitioner dishonestly or 3 fraudulently persuaded the opposite party no. 2 to enter into a partnership agreement and to part with money in pursuance of the same having dishonest intention from the very inception to cheat opposite party no. 2, obtain wrongful gain from the business on the investment allegedly made by opposite party no. 2. Learned Couinsel for the petitioner has relied upon a judgement of the Apex Court reported in 2008 (1) PLJR 82 (SC) (Inder Mohan Goswami & anr Vrs State of Uttaranchal & ors). This Court can do no better than quote Para 41 of the aforesaid judgement in its entirety. “41 On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts, he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.” From the facts emerging in this case there was a contractual partnership agreement between the parties on 25.1.2000. The accounts were not settled as early as February 4 2000. On 21.4.200 an informatory petition was filed by opposite party no. 2 before the CJM that the petitioner allegedly was refusing to settle accounts followed by institution of the present complaint case the very next day on 22.4.2000. Four days latter Money Suit has followed. The course of conduct on part of opposite party no. 2 leaves this Court satisfied that the institution of the present complaint was clearly an abuse of the process of law by what may be called euphemistically as arm twisting tactics to compel the petitioner to come to the negotiation table for settlement of the accounts under the agreement under the threat of a criminal prosecution. Having realised the futility of the criminal prosecution which would not have endured monetary benefits to op0posite party no. 2 within days thereof he files civil suit also. This Court is therefore satisfied that very institution of the complaint case no. 598C of 2000 was an abuse of the process of law. Entire proceedings therein against the petitioner including the order of cognizance is therefore set aside. The application stands allowed. Learned Counsel for the petitioner at this stage submits that he is ready and willing to adequately cooperate in early disposal of the Money suit in which he has already filed written statement and issues have been framed. Snkumar/- (Navin Sinha,J.)