IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.53749 of 2007 1. Harinath Singh @ Harihar Singh, son of Late Bhumidhar Singh 2. Vijay Bahadur Singh @ Jugunu Singh, son of Parasnath Singh 3. Rakesh Singh @ Pintu, son of Harinath Singh @ Harihar Singh All resident of village-Babiaon, P.S.-Cholapur, District-Varanasi(U.P.). 4. Shyam Narayan Patel @ Shyam Narayan, son of Late Birju, resident of village-Rupapur, P.S.-Cholapur, District-Vanarasi(U.P.) ……..Petitioners. Versus 1. The State Of Bihar 2. Sachchidanand Singh @ Chunnu, son of Late-Awadh Bihari Singh, resident of village-Chap, P.S.-Akorhi Gola, District-Rohtas. …….Opposite Parties ---------- 04. 26.03.2010 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the opposite party No. 2. The present quashing application has been filed for quashing the order dated 23.08.2005 whereby the learned Chief Judicial Magistrate, Rohtas at Sasaram in Complaint Case No. 1037 of 2004 took cognizance under Sections 420 and 406 of the Indian Penal Code against the petitioners. It is submitted by learned counsel for the petitioners that after passing the order of cognizance dated 23.08.2005, no further progress has been made in the case which has not been controverted by the learned counsel for the opposite party no. 2. The allegation in the complaint petition is that in January, 2001 the accused persons came to the - 2 - complainant who has coal depot and requested for supply of coal for running brick klin business. It was agreed between the parties that the payments will be made against the supply and in pursuance to that since 2001 the coal was supplied by the complainant to the accused persons and between January, 2001 to April, 2004 worth Rs. 7, 65,000/- payment was not made. For the payment of the aforesaid arrears the complainant reminded several times to the accused persons and consequently gave two legal notices. Thereafter the complainant approached Dehri Police Station who advised the complainant to file a complaint and consequently the present complaint was filed. In support of the complaint, the complainant was examined on solemn affirmation and other witnesses were also examined. The allegation of supply of coal and its non payment by the accused persons has been supported by the witnesses. On basis of which learned Chief Judicial Magistrate, Rohtas at Sasaram vide order dated 23.08.2005 took cognizance under Sections 420 and 406 of the Indian Penal Code. It is submitted by the learned counsel for the petitioners that it is absolutely a contractual matter in which the supply was made in pursuance to the agreement between the parties and it is admitted by the - 3 - petitioners that since 2001 the part payments were also made but certain payments were not made. Hence no criminal offence is made out and in this regard learned counsel for the petitioner has given reference of a decision reported in 2002(1) PLJR(SC) 247 S.W. Palanitkar & others versus State of Bihar & others wherein it has been held that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of mental act of fraudulent misappropriation. Learned counsel for the Opposite Party has submitted that the supply was made since 2001 and in the meanwhile part payments were made but ultimately till 2004, the total amount of Rs. 7, 65000/- remained to be paid and the liability has been denied by the learned counsel for the petitioners in paragraph No. 8 and 9 of the present quashing application. Hence prima facie case under Sections 420 and 406 is made out. Perused the complaint petition and the order of cognizance. From perusal of the complaint, it appears that both sides agreed and on agreement the coal was supplied by the O.P. No. 2 to the petitioners and some payments were made between 2001 to 2004, but Rs. 7,65, 000/- remained to be paid and in spite of reminders and legal notices, payments have not been - 4 - made by the petitioners which resulted into lodging of the present complaint petition. It appears that simply for the payment, the present complaint has been filed which is nothing but a contractual dues between the parties. From the records, it appears that no motive for cheating or misappropriating the amount from very inception has been alleged in the complaint petition or in the solemn affirmation of the complainant. Hence in view of the aforesaid judgment cited by learned counsel for the petitioners, I do not find that there was any intention of cheating or misappropriating the amount. Hence I do not find that any case under Section 420 and 406 of the Indian Penal Code being made out against the petitioners. In this context the findings of the Hon’ble Supreme Court in the case of Indian Oil Corporation versus NEPC India Limited and others reported in 2006(6) SCC 736 in which the Hon’ble Supreme Court has deprecated the procedure of utilizing the criminal forum for settling the civil dispute. In view of the discussions made above, I do here by quash the order of cognizance dated 23.08.2005 passed by learned C.J.M. Rohtas in Complaint Case No. 1037 of 2004. However, liberty is given to O.P. No. 2 to take recourse to the civil remedies for recovery of the amount - 5 - and apart from that the quashing of the cognizance order will not preclude both the parties to settle the dispute outside the Court or through appropriate civil forum. The application with the aforesaid observations and directions stands allowed. Shageer (Dinesh Kumar Singh, J)