HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL MISCELLANEOUS PETITION No.7117 of 2011 in CRIMINAL PETITION No.609 of 2009 Date: August 10, 2011 Between: Sambha Mahender @ N. Mahendra … Petitioner And 1. State of A.P., through its Public Prosecutor, A.P. High Court, Hyderabad & another. … Respondents * * * HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL MISCELLANEOUS PETITION No.7117 of 2011 in CRIMINAL PETITION No.609 of 2009 O R D E R: This application is filed by the petitioner who is accused in C.C. No.523 of 2007 on the file of the Judicial Magistrate of the First Class, Dharmavaram, to recall the order dated 15.7.2011 passed by this Court in Criminal Petition No.609 of 2009. Criminal Petition No.609 of 2009 was filed for quashing of the proceedings in C.C. No.523 of 2007 and this Court by the above order dated 15.7.2011 permitted the counsel to withdraw the criminal petition with a liberty to raise objections with regard to criminal liability at the time of framing charges. 2. Learned counsel for the petitioner submits that the petitioner/accused has not given any instructions to the counsel for withdrawing the criminal petition. Therefore, the order may be recalled. 3. Heard the learned counsel for the petitioner. 4. Evidently, charge sheet was filed after investigation on complaint which was lodged by the complainant to the effect that from 2003 till 2006 silk sarees worth Rs.1,94,000/- were supplied in instalments and ultimately in 2006 a part payment of Rs.8,000/- was made and some sarees were returned. 5. The learned counsel for the petitioner contends that it is the case of civil liability. Evidently, the conduct of the petitioner about the criminal liability has to be seen from the circumstances of the case. When a businessman has purchased the properties for sale and the goods were delivered at a particular place, it is the duty of the businessman to pay the amounts. It is not as though the accused has kept the goods, which were supplied, to him without sale or for any purpose of exhibition. It is quite clear that the circumstances clearly goes to show that the accused has made the complainant to believe that the amounts will be paid and thereafter obtained supply of the goods. Therefore, in view of the above circumstances it is a fit case to proceed with the trial against the accused by framing necessary charges. 6. The decisions relied on by the learned counsel for the petitioner in V.Y. Jose and another v . State of Gujarat and another[1] and Kingshuk Neogi v. The State of West Bengal[2] can be considered at the time of the trial and at this stage it is not the case for exercise of power under Section 482 Cr.P.C. to quash the proceedings. 7. The order dated 15.7.2011 passed by this Court in Criminal Petition No.609 of 2009 is recalled. Since the bona fides or otherwise of the accused have to be determined only after trial of the case, the criminal petition is dismissed and the Court below is directed to frame necessary charges and proceed against the petitioner/accused according to law. ____________________________ N.R.L. NAGESWARA RAO, J Date: August 10, 2011. BSB [1] (2009) 3 Supreme Court Cases 78 [2] 2009 (1) All India Criminal Law Reporter 224