IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8658 of 2010 1. MARC LABORATORIES LTD. THRU.MR.PREM KISHORE 2. PREM KISHORE RASTOGI S/O LATE RAJ KISHORE, DIRECTOR, MARC LABORATORIES LTD. 3. B.K. SRIVASTAVA S/O LATE R.S. SRIVASTAVA, EXECUTIVE DIRECTOR MARC LABORATORIES LTD. 4. M.J. SIDDIQUI S/O M.S. HUSSAIN, BRANCH MANAGER MARC LABORATORIES LTD. 5. SUBHASH CHANDRA SETH S/O SHYAM CHANDRA SETH, ZONAL MANAGER MARC LABORATORIES LTD. Versus 1. THE STATE OF BIHAR 2. MR. RADHESH KUMAR SHARMA, ADVOCATE ----------- 5. 13.08.2010 The petitioners are officers on various positions of Marc Laboratories Ltd. and seek quashing of the order dated 22.1.2010 passed by Judicial Magistrate, Patna in Complaint Case No. 3212 (C) of 2009 by which cognizance has been taken under Section 406, 420 I.P.C. The case of the complainant is that he was the conducting lawyer for the company and since September 2007, he was not paid his fees by the company. Further complaint was that the petitioner no. 5 had been disbursed a sum of Rs. 80,000/- by the company which he misappropriated. The opposite party no. 2 also complains that the T.D.S. certificate was not issued by the company and therefore accused were liable for prosecution for cheating and 2 misappropriation. The learned counsel for the petitioners has prayed for quashing of the entire proceeding on the ground that no offence whatsoever is made out against the accused persons and non payment of the lawyer’s fees would by no stretch of imagination make them liable for prosecution under Section 420 since there was no misappropriation. Moreover since the company has been represented through its Director as petitioner no. 1 and does not support the case of the complainant that the petitioner no. 5 had been disbursed a sum of Rs. 80,000/- for payment of the complainant, the allegation against the petitioner no. 5 is also not substantiated. Further argument of the petitioner is that non issue of T.D.S. certificate would also not make them liable for prosecution 420, 406 I.P.C. The learned counsel for the opposite party no. 2 has contended that since he is a lawyer this court should take immediate step for payment of bills which are due. In his understanding the non issue of T.D.S. certificate also would make the petitioners liable under Section 420,406 I.P.C. Having gone through the complaint, I find 3 that no element of cheating or misappropriation is made out in the facts of the case. Therefore, in my view, entire proceedings of Complaint Case No. 3212 (C) of 2009 is nothing but an abuse of process of court. In view of such, this application is allowed and the entire proceeding of Complaint Case No. 3212 (C) of 2009 pending before the learned Judicial Magistrate-cum-Additional Munsif 13th Patna, is hereby quashed. Fahad. ( Anjana Prakash, J. )