IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11701 of 2008 1. Paras Nath Verma, Son of Anant Lal Verma. 2. Sanjay @ Sanjay Verma, Son of Paras Nath Verma. Both residents of Dalver house, P.S. Danapur, District- Patna..........................................................................Petitioners. Versus 1. The State of Bihar. 2. Arvind Kumar Sinha, Son of Late Sheodip Narain, Accounts Manager and constituted Attorney of Karpur Construction Pvt. Ltd. Situated at Verma Karpur House, S.P. Verma Road, P.S. Kotwali Town, District- Patna.............................................Opposite Parties. ----------- 3. 30.04.2010. In the present application, the order dated 11.08.2003 has been challenged by which the cognizance has been taken under Section 406 of the Indian Penal Code in complaint case no. 838(C) of 2003 by the learned Judicial Magistrate, Ist Class, Patna. In pursuance to the order dated 14.08.2008, the notice was issued to the opposite party no.2. The office report dated 25.11.2008 suggests that the notice was validly served. No one is appearing on behalf of the opposite party no.2. The prosecution case got initiated on the complaint filed by one Arvind Kumar Sinha (Opposite Party No. 2), Accounts Manager and duly constituted Attorney of Karpur Construction Pvt. Ltd., alleging therein that the petitioners alongwith Dr. Ashok Kumar entered into an agreement dated 17.07.2001 2 for development of a piece of land situated at Boring Canal Road under Tauzi No. 32 (Khata No. 177 and 184, Khesra Nos. 167 and 169 measuring an area about four Khatas nine Dhurs(Approximately 6060 Sq. ft.)for which Rs. 6,02,000/- were paid by the complainant’s company, by way of advance, to the accused persons by four cheques, on the date of agreement itself. Under the agreement, the complainant’s company was authorized by the accused persons to do all acts, deeds, materials and things necessary for and connected with the development of the land in question and to construct the proposed multi storied building. It is also alleged that the complainant’s company was also authorized to process/ submit a plan for approval and sanction of the building plan from the P.R.D.A. on behalf of the accused persons. The accused persons assured to deliver the vacant possession of the entire land within a month. In pursuance to the this agreement, the complainant’s company invested a huge amount to the tune of approximate 50 lacs but the possession of only a marginal portion in the back was handed over to the complainant’s 3 company by the accused persons. However on 03.10.2002 the accused persons sent a notice to complainant to the effect that they are no longer interested in getting the land in question developed then the complainant realized that accused persons have entered into an agreement to cheat hence the present complaint was filed and subsequently cognizance was taken under Section 406 of the Indian Penal Code vide order dated 11.08.2003 by the learned Judicial Magistrate, Ist Class, Patna, in complaint case no. 838 ( C ) of 2003 and the said impugned order of cognizance is under challenge in the present proceeding. It is submitted on behalf of the learned counsel for the petitioners that as per the agreement, the petitioners and others were to give vacant possession of the plot in question to the complainant’s company but there were 10 shops on rent on the said plot and the petitioners side approached the tenants to vacate the premises but instead of vacating the premises, the said tenants entered into litigation and a proceeding under Section 144 Cr.P.C. was initiated and the petitioners were prohibited from 4 committing any overt act on the part of the land on which said shops were situated. Hence terms of the agreement could not be complied within stipulated period due to the subsequent litigation at the behest of the tenants. Hence the petitioners’ side informed the subsequent development to the complainant’s company and prayed for agreement to be cancelled vide two notices dated 03.10.2002 and 04.12.2002 as contained in Annexure-4 of the present application. Learned counsel for the petitioners has further pointed out that before charge the complainant in his cross-examination has stated that the present complaint has been filed to recover the expenses which the complainant’s company has incurred. Hence the present complaint has been filed for recovery of money for which remedies lie under civil forum. It is further contended that a title suit being T.S. No. 78 of 2004 has been filed on behalf of the complainant for recovery of the money which is pending before the learned Sub-Judge IV and in which the settlement has been arrived at with the petitioners and one Dr. Ashok Kumar and the complainant’s company. It is further contended that no 5 offence under Section 406 of the Indian Penal Code is made out even assuming the allegations made in the complaint. After hearing the counsel for the petitioners and the State and perusing the record, I find that the offence under Section 406 of the Indian Penal Code is not made out as for constituting an offence under Section 406 of the Indian Penal Code, there must be a dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which breach of trust is charged. The ingredients of criminal breach of trust are that the accused must have been entrusted with the property and dominion over it and the accused must have misappropriated the property and disposed of that property in violation of such trust. In the present case none of the ingredients are available and in absence of these ingredients no offence of criminal breach of trust is made out. As per the allegations in the complaint it was simply contractual agreement and failure of the contract in the predicament of not vacating the premises by the tenants does 6 not constitute an offence under Section 406 of the Indian Penal Code. Hence it appears from the allegations in complaint that the dispute is of civil nature. Moreover the complainant has admitted this fact in his evidence that the complaint has been filed for recovery of money and in view of the title suit being filed from the complainant’s side for recovery of money the continuation of complaint will be an abuse of the process of the court. The tendency to redress the civil dispute through the criminal forum has been deprecated by Hon’ble Apex Court reported in 2006(6) S.C.C. 736 (Indian Oil Corpn Vs. NEPC India Ltd. & Ors). Paragraph Nos. 13 and 14 read as follows: 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 7 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.” 14.”While no one with a legitimate cause or grievance should be prevented or seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecution and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may” Hence in view of the aforesaid ratio laid down by the Apex Court it is apparent that the present criminal complaint has been filed for redressal of the civil dispute. Moreover since Title Suit is also pending between the parties for the same dispute hence it can be held that the complainant has 8 chosen the criminal forum for quick redressal of his civil dispute. Learned counsel for the petitioners has also drawn my attention with regard to the order dated 05.02.2008 passed in Cr. Misc. No. 28489 of 2006 (Dr. Ashok Kumar Vs. The State of Bihar and another) which is Annexure-5 of the present application whereby the same cognizance order with regard to other accused Dr. Ashok Kumar has been quashed by a Bench of this Court. Hence on this score also allowing the prosecution to continue with regard to petitioners will be an abuse of the process of the court. In view of the aforesaid discussions, the order of cognizance dated 11.08.2003 passed by the learned Judicial Magistrate, Ist Class, Patna, in complaint case no.838( C ) of 2003 under Section 406 of the Indian Penal Code is do hereby quash. However, any finding in the present proceeding is limited for the purpose of quashing of the criminal case in the facts and circumstances of the present case which 9 may not be used in civil proceedings prejudicing the case of either party. U.K. (Dinesh Kumar Singh,J)