IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43053 of 2007 A.K.SRIVASTAVA @ AKHILESHWAR KUMAR SRIVASTAVA son of late Shree Bachoo Prasad, the Director, M/s. Vridhi Shree Marketing and Services Limited 809, Jagat Trade Centre, Fraser Raod, P. S. Kotwali, District- Patna. … Petitioner. Versus 1. STATE OF BIHAR 2. MMTC Limited Shyama Bhawan, West Boring Canal Road, through Subrata Saha son of late Gopi Nath Saha, resident of BF-73 Salt Lake City Calcutta- 700064. …Opposite parties. ----------- For the petitioner : Mr. Jagdish Prasad, adv. For the state : Mr. Jharkhandi Upadhayaya, Adv. For the O. P. No. 2 : Mr. Ashutosh Kumar, Adv. : Mr. C. N. Jha, Adv. --------- 4. 19.03.2010 Heard counsel for the petitioner, counsel for the State as also counsel for opposite party no. 2. The order rejecting the prayer of the petitioner under Section 245(2) of the Code of Criminal Procedure is sought to be assailed on the ground that the parties were bound by an agreement envisaging an arbitration clause and therefore the proceeding of criminal case would be abuse of the process of the court. Let it be noted when the argument had commenced, counsel for the petitioner first wanted an adjournment to look into the counter affidavit which was served to him only today. This Court in fact had made it 2 clear that there would be no need to look into the counter affidavit and the counter affidavit so filed by opposite party no. 2 will be of little avail in view of the fact that the impugned order which has been passed under Section 245(2) has only referred to either the allegations made in the complaint petition or the evidence which was recorded before the court below in terms of Section 244 of the Code of Criminal Procedure. That being so, there would be no need for adjournment of this case for giving opportunity to file reply to the counter affidavit. Coming to the merits of the case and the solitary point with regard to arbitration it would be found that action can involve both civil and criminal action and when the corporation, complainant (MMTC) has specifically alleged in paragraph 14 of the complaint which reads as follows:- “…..14. That the complainant had no option but to realize the price of the fertilizer, dishonestly, fraudulently and stealthily removed and admitted in Annexure-4 and as such the cheques lying with the MMTC limited signed by accused 1 and 2 pretentiously meant for such an eventuality, were presented to have the price. Three cheques on 3.5.99 one for rupees sixty five lacs fifty three thousand 3 three hundred twenty seven and twenty paise (Rs.65,53,327.20) the other for rupees seventeen lacs forty thousand six hundred fifty nine only (Rs.17,40,659.00) and the third one for rupees eighty nine lacs one thousand six hundred only (Rs.89,01,600.00), total amount was one crore seventy one lacs ninety five thousand five hundred eighty six and twenty paise only disnonoured by the syndicate Bank, Patna the banker of the accused persons due to the reason insufficient funds. It was in this precise and calculated manner that the accused persons succeeded in their dishonest act and defrauded and misappropriated the goods of the complainant in respect of a total amount of Rs.1,71,95586.20(Rupees one crore, seventy one lacs ninety five thousand five hundred eighty six and paise twenty) only and successfully played description, planned at the time of signing the agreement (annexure-1)….” Thus there would be little scope to accept the submission of the learned counsel for the petitioner that the entire cause of action was based on a civil action of the corporation. There is a specific allegation of defrauding and misappropriation of goods of the corporation (complainant) for a sum of Rs.1,71,95,586.20 in the complaint and the court below having examined the witnesses in course of enquiry u/s 202 Cr.P.C. has also found that there are sufficient materials making out the offence. Thus the order impugned rejecting the prayer for 4 discharge under Section 245(2) would warrant no interference from this Court. That being so, this application is wholly misconceived and is accordingly dismissed. kanchan (Mihir Kumar Jha, J.)