IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47999 of 2007 SHARWAN JEE @ SHARWAN KUMAR & ANR Versus THE STATE OF BIHAR & ANR ----------- 3/ 17/2/2009 Heard learned counsel for the petitioners and learned counsel for the State, as also O.P. No.2. The petitioner seeks quashing of the order of cognizance dated 25.6.2007 and the entire proceedings in Complaint Case No.1811-C/07 under Sections-406 and 418 of I.P.C. The allegations are that the complainant had been authorized by his master to file the complaint. The master was a wholesale dealer in cloth and that the petitioners were retail dealers. The petitioners on 22.10.2002 took goods on credit of the value of Rs.67,376/-. Up to 12.5.2007 they paid the arrears in installments for a total of Rs.34,100/-. The balance of Rs.53,276/- was not being repaid despite legal notice and neither were the goods being returned. On demand for the dues, the petitioners abused and refused to return the money. Learned counsel for the petitioners submits that reading the complaint, as it is, no criminal offence, whatsoever, is made out, much less Section-406 and 418 of I.P.C. It is submitted that the allegations do not 2 state that the goods were handed over to the petitioner retaining ownership in them restraining him from disposing it till such time that full payment was made. Section-406 of I.P.C. which makes criminal breach of trust an offence, has no application as the O.P. No.2, according to the allegations, did not retain any dominion on the property, but unconditionally handed it over to the petitioner on credit. Once the complaint acknowledges that the goods were delivered on credit and part payment has also been made, no question of cheating arises as there is no allegation that the petitioners never had the intention to repay the dues, from the very inception. That makes Section-418 of I.P.C. also inapplicable. It was the O.P. No.2, who voluntarily parted with the goods without any inducement on the part of the petitioners. The allegations, therefore, constitute a simple money claim which is a civil dispute. Learned counsel for the O.P. No.2, submits that if the petitioner took the goods on credit, they are liable to pay for the same. The law stands well settled that if the allegations on the face of it constitute a civil dispute of a money claim, resort to the process of criminal law is an abuse of the process of the court circumventing normal 3 civil courts. This Court finds substance in the submission of the petitioner that as per the allegations, there has been no inducement on the part of the petitioners with a dishonest intention at the inception. The question of cheating, therefore, does not arise. Likewise, the allegations do not state that the goods were handed over to the petitioners conditionally retaining the title in them, restraining disposal till such time that the goods were not paid for. On the contrary, the allegations are of a sale on credit and acknowledgement of part payment. The grievance is with regard to non-payment of the balance dues. In MADHAVRAO JIWAJIRAO SINDHIYA Versus SAMBHAJIRAO CHANDROJIRAO ANGRE , 1988(1) S.C.C.692 it was held at paragraph-7 as follows:- “ The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it 4 may be at a preliminary stage.” In U. DHAR AND ANOTHER Versus. STATE OF JHARKHAND AND ANOTHER, 2003(2) SC.C. 219, the sub-contractor filed a complaint case against the contractor for not having paid the share of the sub- contractor despite receipt of payment from the company which awarded the contract. The defence of the contractor was that the controversy relates to a purely civil dispute regarding payment of money and no case for criminal offence was made out. The court recorded its satisfaction that the dispute between the parties was purely a civil dispute regarding payment of money and no offence under Section-403, 406, 420 and 120B of I.P.C. was made out. In VIR PRAKASH SHARMA Versus. ANIL KUMAR AGRAWAL AND ANOTHER, 2007(7) S.C.C. 373, the Apex Court held in the relevant extract at paragraph-8 as follows:- “The dispute between the parties herein is essentially a civil dispute. Non-payment or under payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust…” This Court, in view of the civil nature of the dispute with regard to a money claim simpliciter, finds it difficult to sustain the prosecution of the petitioners. The Court holds that the complaint is in gross abuse of 5 the process of criminal law. The order of cognizance dated 25.6.2007 and the entire proceedings in Complaint Case No.1811- C/07, pending before the court of Judicial Magistrate, 1st Class, (Sri D.K. Singh), Patna is accordingly quashed. The application is allowed. KC ( Navin Sinha, J.)