IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43382 of 2007 SHRI PRAKASH JEE @ PRAKASH KUMAR BHAGAT, son of Late Jitendra Nath Bhagat, resident of village-Bouna, P.O. & P.S.Bounsi, District-Bhagalpur -------- Petitioners Versus 1. THE STATE OF BIHAR 2. Umesh Prasad Singh, Son of Late Rabindra Prasad, Manager of M/S Friends Textiles, Choudhary Market, Patna-800 004 -------------- Opp.Parties. ----------- For the petitioner : Mr. Bimlendu Mishra, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Mr. K.Ravish, Advocate --------- O R D E R 27-01-2009 The proprietor of M/S Bharatiya Vastralaya at Bounsi in the District of Bhagalpur, the petitioner herein, who has been arrayed as the sole accused in Complaint Case No.975 (C ) of 1999, has prayed for the quashing of the entire criminal proceeding emanating therefrom including the order dated 8.3.2000 passed therein by Sri D.S. Srivastava, Judicial Magistrate, First Class, Patna, whereby he has taken cognizance of the offence punishable under Section 406 I.P.C. against the petitioner. The Complainant, one Umesh Prasad Singh, the Manager of M/S. Friends Textiles, Patna impleaded as Opp.Party no.2 herein , filed the aforesaid complaint on 17.7.1999 before the learned Chief Judicial Magistrate,Patna, inter alia alleging the commission of offences under Sections 406 , 420 and 426 I.P.C. - 2 - by the petitioner. According to the complainant, whereas he is a stockist / wholesale cloth merchant, the accused is a retailer at Bounsi. It is alleged that the petitioner approached the complainant in his shop at Patna with a request to supply him with clothes on credit which he would vend and they entered into an oral agreement regarding purchase and sale of clothes on certain terms and conditions, one of which was that the petitioner would take clothes of his choice from the complainant on credit for a certain period whereafter the petitioner would deposit the sale proceeds and/or the left over of clothes which could not be sold by him. Accordingly, a long business relationship developed between the parties but in due course the petitioner became a defaulter in payment and he failed to pay a sum of Rs.20, 666.32, which he was bound pay as per terms of the oral agreement along with an interest at the rate of 20 % to be charged on the outstanding amount. Reminders sent evinced no response. Eventually a legal notice was sent on 8.4.1999 but the payment remained outstanding. It has been submitted by the learned counsel for the petitioner that the order taking cognizance cannot be upheld in law since the entire transaction is purely a business transaction between the parties pursuant to an admitted agreement between them and any breach thereof would at best amount to a breach of contract amounting to damages and no criminal liability can be fastened on the petitioner. It was also sought to be submitted that - 3 - as per terms of the contract nothing remains to be paid by the petitioner to the complaint on account of the transactions made between them and the complainant was only trying to harass the petitioner by filing the instant complaint. On the other hand the submissions of the learned counsel for Opp.Party no.2 is that this is a clear case of criminal breach of trust inviting prosecution under Section 406 I.P.C. since the property entrusted to the agent was dishonestly misappropriated or converted to his own use in violation of the terms of a legal contract. Unfortunately, the complaint petition is completely silent as to the date and time when the property was handed over by the complainant to the petitioner. It is also silent about the value of property handed over. It is also silent as to the date when the agreement was entered into between the parties and since when the payment became due. In such circumstances and with the assertion of the learned counsel for the petitioner that all outstanding dues had been paid, it is difficult to accept the submission of the learned counsel for Opp.Party no.2 that there was dishonest intention on the part of the petitioner. Even otherwise “dishonest” is a relative term which is difficult to prove. In the facts and circumstances of the case, I am inclined to accept the submissions advanced on behalf of the petitioner and hold that the dispute is civil in nature and no criminal liability lies - 4 - for the same. Accordingly, this application is allowed and the impugned order taking cognizance is hereby quashed. ( Abhijit Sinha, J ) NKS/-