IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22555 of 2007 Parwez Akhtar @ Mallik @ Md.Parwez Akhatar, Son of Late Md. Mohiuddin, Son of Manikpur, P.O. Pirjaram Via Kinjar, P.S. and Distt. Jehanabad present residing at Khan Bhadur Road, Near Arwal More, P.O. + P.S. + District Jehanabad. ------- Petitioner Versus 1. State of Bihar. 2. Mahesh Prasad, Advocate Son of Sri Late Somari Singh, R/o Mo.+P.S. Budha Colony, Distt. Patna. ---------- Opp. Parties ----------- 5 4.2.2010 Heard learned counsel for the petitioner and counsel for the opposite party no.2 in person. The order taking cognizance has been sought to be assailed by the learned counsel for the petitioner on the ground that it is out and out a civil dispute, inasmuch as, the allegation of the complainant that certain consignment of Sevai was handed over to the petitioner in course of business transaction for which payment was not made cannot be strictly a matter criminal case. Had it been only of a very simple nature as projected above, this Court could have asked the parties to go for a civil suit but here it is found that actually it was the petitioner who had himself filed a complaint case alleging that the firm represented by the opposite party no.2 2 having obtained advance for supply of such Sevai did not supply the same and had thus committed breach of trust by swallowing the entire sum of advance. In fact, cognizance was taken in that case against the firm of the opposite party no.2 whereafter this Court had quashed the same by an order dated 21.11.2007 in Cr. Misc. No. 17552 of 2004 in the case of Mahesh Prasad Vs. The State of Bihar & Anr. since reported in 2008(1) BBCJ 314 wherein it was recorded that no money was entrusted to opposite party no. 2 by the petitioner. Thus from reading of the aforementioned judgment as a whole it becomes clear that in that case though the petitioner was asked to appear in person by this Court on a number of occasions but he did not choose to appear himself or through his counsel who had filed Vakalatnama on his behalf. The explanation offered by the learned counsel for the petitioner that since at that point of time bail was not granted to the petitioner, he could not appear can also not be accepted when it is found the petitioner had suddenly left pairvi in that case. Thus the finding arrived by this Court between the same parties to the effect that :- "It appears that O.P. No. 2 herein filed the aforesaid complaint case on 21.4.2003 3 inter alia stating that he carries on business of selling Sevai which for the past two months he had been purchasing in cash from the accused persons having a Sevai Manufacturing Unit in the house of accused nos. 1 to 3 in Buddha Colony, Patna and that he sold the Sevai at different places. It is further stated that on 6.11.2002 the complainant received a telephonic call from accused no. 3, informing him that 500 cartoons of Sewai would be given to him at a cheaper rate if he could advance the price as she was in an urgent need of money in absence whereof the manufacturing unit would have to be closed. It was also given out that on the following day (7.11.2002) either her husband or her son would meet him and he should make an arrangement for the money. it is alleged that on 7.11.2002, the complainant took out Rs. 70,000/- from the Bank and handed over the same to the petitioner in the presence of his son, Pawan Kumar, at around 5.30 in the evening in his house and in token of such receipt of money the petitioner is said to have handed over a receipt of the cash memo of his firm, it is also alleged that notwithstanding the money being advanced the accused persons neither supplied the promised Sevai nor returned the entire money except for Rs. 5000/- which was paid in the month of February, 2003. It has been submitted on behalf of the petitioner that he alongwith his wife, son and witness, Gopal Sharan, have been falsely implicated in this case which has been filed as a counter blast to the complaint case filed by him on 29.3.2003 bearing no. 625(C) of 2003 against the O.P. No. 2 and his relatives only with a view to coerce him into meek submission. It has also been submitted that after taking of cognizance O.P. No. 2 and the other accused failed to appear in Court as a consequence whereof non-bailable warrant had been issued against the accused persons. It has also been submitted that the said complaint petition had been filed since the complainant had not paid Rs. 1,29,000/- to the petitioner after taking 4 Sewai from him and he was not ready to return the same and instead had been advancing threats to implicate him in false cases. The further submission advanced by the learned counsel for the petitioner is that through the complaint petition giving rise to the instant case, the complainant appears to be aggrieved by the allegedly non-return of the money allegedly said to have been advanced to the petitioner and the same could not give rise to any criminal liability as the same was a civil dispute for which remedy did not lie in a criminal proceeding. Since O.P. No. 2 has not appeared, the submission advanced by the learned counsel remains unrebutted. Even otherwise from the allegations made in the complaint petition, no offence under Sections 406 and 420 I.P.C. can be said to have been made out against the petitioner. Admittedly, there is no entrustment of any money to the petitioner rather the said money was paid to the petitioner in advance by way of price of Sewai which was to be supplied and as soon as money is paid in advance as a price of some commodity it becomes the property of the petitioner and the complainant loses ownership of the said property (money). As such no offence under Section 406 I.P.C. can be said to have been made out. Similarly there had been no misrepresentation nor false inducement to the complainant and as such even an offence under Section 420 I.P.C. can be said to have been made out." (underline for emphasis) The purpose of giving reference of two competing criminal cases for the same transaction with added emphasis to the underlined findings is in the judgment of this Court is to show that payment of Rs. 1,35,000/- by the opposite party no. 2 to the petitioner 5 has become and final between the parties. It further appears that when an opportunity was given to the petitioner to claim and settle his alleged amount before this Court in the case of Mahesh Pd. (Supra) he did not remain present as directed by the court and in that circumstance, when the aforementioned criminal prosecution of the opposite party no. 2 was quashed, the case of the petitioner as against the opposite party no.2 has to be now disbelieved, inasmuch as, the petitioner has also not filed any civil suit for realization of the alleged money for which the petitioner had filed the complaint case. Be that as it may, from reading of the complaint petition as also the materials on record, the offence as alleged in complaint is clearly made out against the petitioner and thus this Court would find no error in the order taking cognizance. That being so, this application is wholly misconceived and the same is accordingly dismissed with a direction to the trial court to ensure that the trial is completed within six months and if any of the accused person is not appearing, coercive method may be adopted for 6 his appearance with a view to dispose of the pending trial expeditiously as indicated above. Rsh (Mihir Kumar Jha, J.)