IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5371 of 2008 Bisheshwar Tiwary, Son of Late Giriwardhari Tiwary, resident of Village- Dhamwal, Police Station- Shahpur, District- Bhojpur at present- Executive Engineer, R.C.D., Road Division, Sahebganj (Jharkhand).....................................................................Petitioner. Versus 1. The State of Bihar. 2. Vijay Kumar Sinha, Son of Late Banaras Prasad, resident of Village- Murgiachak, P.S. Bena, District- Nalanda at present resident of Mohalla- Udwantpuri, P.S. Biharsharif, District- Nalanda............................................................Opposite Parties. ----------- 3. 23.04.2010. Learned counsel for the petitioner is permitted to make necessary correction in paragraph no.1 of the application. Heard learned counsel for the petitioner and counsel appearing on behalf of the opposite party no.2. The present application has been filed for quashing the order dated 17.01.2007 passed in Laheri P.S. Case No. 156 of 2004 whereby the learned Chief Judicial Magistrate, Nalanda, at Biharshariff has taken cognizance under Sections 341, 323, 419, 420 and 504 of the Indian Penal Code. Broad allegation in the complaint is that the petitioner took loan of Rs. 35,000/- and Rs. 30,000/- on 06.12.2002 and 09.12.2002 respectively from the complainant but did not return the same. On 16.12.2002 complainant demanded back his money upon which accused 2 got agitated and threatened the complainant, hence on 16.12.2003 the complainant went to police station to file a case where complainant’s signature was obtained on plain paper but subsequently complainant came to know that no case has been registered then the present complaint was filed on 19.12.2003. Subsequently, the complaint was transferred under Section 156(3) of Cr.P.C. to the police station resulted in registration of Laheri P.S. Case No. 156 of 2004 under Sections 341, 323, 419, 420 and 504 of the Indian Penal Code on 02.11.2004. The police after investigation submitted final form on 31.07.2006 as contained in Annexure-5 treating the case to be false and also recommended for the prosecution of the informant under Sections 182 and 211 of the Indian Penal Code but the learned Chief Judicial Magistrate, Nalanda at Bihar Shariff vide order dated 17.01.2007 differed with final form and took cognizance under Sections 341, 323, 419, 420 and 504 of the Indian Penal Code which has been challenged in the present proceeding. It is submitted by the learned counsel 3 for the petitioner that admittedly, from the averments made in the complaint, it was simply a loan transaction between the parties, if at all, it only gives rise to civil consequences as the complainant has the remedy under the civil forum for redressal of his grievance. The other contention of the learned counsel for petitioner is that taking loan and non-refund of the same does not come within the mischief of Section 420 Cr.P.C. as it has been decided in a case reported in 1997(1) B.L.J.663 (Hanuman Prasad Didwania Vs. The State of Bihar). The other contention is that Annexure-2 depicts that the petitioner was on leave from 01.12.2002 to 11.12.2002, hence on the second date of giving the alleged amount i.e., 09.12.2002 the petitioner was not present at his place of posting. Moreover, the police has found the case completely false. Learned counsel for the opposite party no.2 has said that there is material in the case diary as a result of which the learned Chief judicial Magistrate, Nalanda at Biharshariff, took cognizance finding the case prima facie and above all the alibi of 4 the accused being on leave can not be seen at this stage. Moreover, there is no plea of alibi for the money given on 13.05.2002 and no medical prescription has been produced in support of alibi though it is contended by the learned counsel for the petitioner that leave application has also been recorded by the investigating agency during investigation. After hearing the counsel for the parties and perusing the records, I find that it was simply a loan transaction between the parties and from the complaint it does not appear that the complainant has any case of cheating from very inception. Initially, the intention of the petitioner was to take loan though it is only alleged that the intention of the petitioner subsequently went bad. That does not bring the present case within the purview of section 420 Cr.P.C. In the case of Hridaya Ranjan Prasad Verma and others Vs. The State of Bihar and another 2000(4) S.C.C. 168 the Apex court while dealing with the ingredient of an offence under Section 420 of Cr.P.C. held that “mere breach of contract can not give rise to criminal prosecution for cheating unless fraudulent or dishonest 5 intention is shown, right at the beginning of the transaction, that is the time when the offence is said to have been committed.” To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. The distinction between the breach of contract and the offence of cheating is fine one and it depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct, but this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating, unless fraudulent or dishonest intention is shown. To hold a person guilty of cheating, it is necessary to show that he has fraudulent or dishonest intention at the time of making the promise. From his failure to keep up promise subsequently such culpable intention, right at the beginning, when he made to promise, cannot be presumed, hence on the basis of allegation on record, no case under Sections 419 and 420 of the Indian Penal Code, is made out. However, there is nothing on record to 6 suggest the prima facie case under Sections 323, 341 and 504 of the Indian Penal Code though the main allegations are for offences under Sections 419 and 420 of the Indian Penal Code. It appears that after investigation the police submitted final form after coming to the conclusion that petitioner has falsely been implicated but the learned Chief Judicial Magistrate differed with final form. No doubt the learned Chief Judicial Magistrate has the power to differ with the final form but at the same time learned Chief Judicial Magistrate has to realize that investigating agency used to submit final form after forming the opinion on total effect of the materials collected during investigation hence while differing with the final form the nature of allegation, over all materials collected during investigation, reasons of difference, in brief, have to be recorded but from the impugned order it appears that it has been passed only on the basis of statement of few witnesses supporting the prosecution case whereas it is specific case of the petitioner that none of the independent witnesses have supported the 7 prosecution case. From perusal of the record it appears that the complainant tried to redress the civil dispute through the criminal forum and the same has been deprecated by the Apex Court in the case of (Indian Oil Corpn Vs. NEPC India Ltd. & Ors) reported in 2006(6) S.C.C. 736 in following terms. 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sugar Suri V. State of U.P. this Court observed: (SCC P.643, Para 8). “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” It is true that due to pendency of 8 large number of civil cases the litigants used to choose the criminal forum as short cut method for redressal of civil dispute. In view of the aforesaid discussions, I do hereby quash the order of cognizance dated 17.01.2007 including its entire prosecution of Laheri P.S. Case No. 156 of 2004 passed by the Learned Chief Judicial Magistrate, Nalanda at Biharshariff. This order, however, will not preclude the informant to take the matter to appropriate forum for redressal of his grievances where any observation or finding in the present proceeding will not prejudice the case of either party. U.K. (Dinesh Kumar Singh,J)