IN THE HIGH COURT OF JUDICATURE AT PATNA ---------- Cr.Misc. No.41673 of 2007 --------- 1. GURNAM SINGH, SON OF LATE BALWANT SINGH, RESIDNET OF 6721, PHASE-IV, DLF CITY, GURGAON, HARYANA. 2. SMT. KUSUM BALA @ KUSUM, WIFE OF SHRI GURNAM SINGH, RESIDENT OF 6721, PHASE- IV, DLF CITY,GURGAON, HARYANA …………….. PETITIONERS Versus 1. STATE OF BIHAR 2. DR. NAGENDRA KUMAR DUBEY, SON OF SHRI N.K. DUBEY, DIRECTOR OF M/S DUBEY CLINIC PVT. LTD, G- 11,PEOPLES CO-COPERATIVE COLONY, KANKARBAGH, PATNA………………………………………OPP. PARTIES. ----------- 5 14-7-2010 Heard learned counsel for the petitioners and learned counsel for the complainant/opposite party. The prayer made in this application filed under section 482 of the Code of Criminal Procedure is for quashing the order of cognizance dated 23-3-2005 passed by learned Judicial Magistrate, Ist. Class, Patna in Complaint Case No. 328 ( C ) of 2005 in so far as that order relates to these two petitioners who are husband and wife. According to learned counsel for the petitioners no criminal offence is made out on the basis of essential facts alleged in the complaint petition and therefore cognizance under sections 406,420 and 120(B) of the Indian Penal Code is against law and interest of justice requires interference. By referring to the averments and allegations in the complaint petition which has been annexed, it has been shown that the grievance of the complainant who is a doctor is against quality of service allegedly provided by the petitioners. As per complaint petition the petitioners undertook annual maintenance contract for Rs.55,000/- 2 per year for certain machines purchased by the complainant but when the need arose to take care of defect in the machine the service was not of any help to the complainant and as a result he suffered loss as he had paid Rs.4,00000/- ( rupees four lakhs) as well as 1200/- dollar for purchase of some equipments to take care of the defect in his medical equipments. The main issue raised on behalf of petitioner is that even if the allegations made in the complaint petition be accepted as true they only make out a case of negligence or poor quality of service and therefore civil liability. In reply, learned counsel for the complainant/opposite party has submitted that the complainant rightly felt cheated because huge amount of money was spent for maintenance of some essential machine and to keep the equipments in good conditions but still he had to suffer because of inaction or wrong action of the accused persons. Having considered the rival submissions and the allegations made in the complaint petition, it is found that the allegations even if accepted in entirety would make out only a case of civil liability. The essential facts for showing criminality for offences under sections 406 and 420 as well as for conspiracy under section 120(B) of the I.P.C. are lacking. In the facts of the case, criminal prosecution would be an abuse of the process of Court. Hence, the order of cognizance is set aside in so far as it relates to the petitioners. The petition is accordingly, allowed. Naresh ( Shiva Kirti Singh, J.)