IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.20716 of 2007 ***** 1. Binay Prakash @ Bijay Prakash 2. Vidya Prakash Both sons of Late Prem Prakash Sinha, resident of village- Tenduni (Bikramganj) P.O. & P.S.-Bikramganj, District-Rohtas at present residing at 65/66 L.I.C. Colony, Kankarbagh, P.S. Kankarbagh, District-Patna. …. …. Petitioners Versus 1. The State of Bihar. 2. Sri Bhagwan Singh son of Sri Shiv Shankar Singh resident of village- Turti, Post Vikramganj, District-Rohtas. …. …. Opposite parties ----------- For the petitioners : Mr. Anil Kumar Sinha, Advocate Mr. Mrityunjay Kumar, Advocate For the opposite party : Mr. Ramchandra Singh, Advocate Mr. Jitendra Kumar Singh, Advocate For the State : Dr. Mayanand Jha, A.P.P. ----------- 5. 14.5.2009. The two petitioners are before this Court seeking quashing of the order taking cognizance dated 10.4.2006/12.4.2006 in Complaint Case No.459/2004 under Section 406, 409, 420 & 120B of the Indian Penal Code. The allegation made in the complaint petition is that the two petitioners are in the business in the name and style of M/s Auto Dealers, which is a dealer for running a petrol pump located at Bikramganj. The complainant was approached by the two petitioners that if you make certain investments in the company you shall be eligible to become a partner as also profit to the extent of 1/4th. The complainant was also assured that in case of any dispute or delay in payment of profit he shall also be given interest @ 10%. The complainant is supposed to have invested a sum of Rs.1,07,000/-. An agreement was entered into on a non- - 2 - judicial stamp paper as a proof of such an arrangement. From the narration in the complaint it is evident that the whole event took place some time in the year 2004. Over a period of time despite demand made by the complainant no payment under the head of profit from the business accrued to him nor was the principal amount returned. Not only this a complaint case was also filed at Patna by the Vinay Prakash, petitioner no.1, against the complainant with a motive so that the complainant will not insist for return of the money or the payment. It was in this background that the complainant also decided to file the present complaint which is Complaint Case No.459 of 2004. Learned counsel representing the petitioners submits that it was a bonafide business arrangement, which did not work out and there is no element of mens rea of the offence alleged for which cognizance has been taken. If there is evidence to show that an arrangement or agreement was worked out between the parties based on which the investment came to be made but complainant has civil remedy but he cannot utilize the criminal forum to make recovery of the amount or investment made in a legitimate business. If the complainant seriously wanted to settle the account he could have done so or else demanded that the accounts be rendered to him by moving an appropriate forum in this regard. The criminal Court is no substitute of a civil forum. It is also urged that the present case is by way of retaliatory rather than a bonafide claim as alleged in the complaint. It is further contended that none of the ingredients under Section 406 and 420 is made out. Mere non-payment of part of profit or refund does not make it a case for cheating or dishonest - 3 - intent. Learned counsel representing opposite party submits that the order taking cognizance is in order. Merely because there are elements of civil dispute criminal proceeding is not barred and in this regard he relies on some recent decision not only of this Court but also of the Hon’ble Apex Court, which are case of Baliram Prasad v. State of Bihar, 2009(2) PLJR 290 and the case of Indian Oil Corporation v. NEPC India Ltd., (2006) 6 SCC 736. The proposition or the ratio laid down in the two cases cannot be disputed but from the narrations of the case made in the complaint, the Court has to examine it from the point of view whether prima facie a case under Section 406 and 420 is made out. In the present case the entire narration made in the complaint is that the petitioner did enter into the relationship as a partner on the promise of payment of 1/4th or 20% of the profit made from the business. Merely because payments have not accrued to him over a period of time it does not become a case of cheating or defrauding with the complainant. The order taking cognizance dated 10.4.2006/12.4.2006 in Complaint Case No.459/2004 stands quashed. The application is allowed. However, the complainant is not precluded from approaching the correct forum for appropriate declaration of either payment of profit or rendering of accounts. The application is allowed. Pawan/- (Ajay Kumar Tripathi, J.)