IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11242 of 2008 Pankaj Mishra @ Pankaj Kumar Mishra, son of Sri Amarendra Kumar Mishra, resident of C/O Anil Pandey, Book World, Bailey Road, Patna. ………………………Petitioner. Versus 1. The State of Bihar. 2. Anjani Kumar, Son of Narayan Prasad, resident of Mohalla- Shahganj, Mahendroo, P.S. Sultanganj, District-Patna….Opposite Parties. ----------- For the petitioner: M/S. Anand Kumar Ojha & Ravindra Kumar Singh, Advocates. For the complainant:Mr. Ajay Kumar Chakarborty, Advocate. For the State :Mrs.Pushpa Singh-2, A.P.P. ------ 3. 11.02.2011. Heard learned counsels for the petitioner, complainant and the State. The petitioner has challenged the order of cognizance dated 28.02.2007 whereby in Complaint Case no. 3462(C) of 2006 cognizance has been taken under Sections 406 and 420 of the Indian Penal Code. The matter was initially heard on 11.10.2010 when the interim order was passed. The petitioner was a representative of a Herbal Medicine Company. The Company entered into an agreement with the complainant on 02.10.2005 for supply of Herbal medicines. In the complaint, it is alleged that Rs. 1,50,000/- was taken by the - 2 - company with an undertaking that the medicines will be supplied but subsequently the part medicines were supplied as it is submitted by the learned counsel for the complainant that initially Rs. 45,000/- then 21,000/- worth of medicines were supplied and the company subsequently appointed somebody as a dealer at Muzaffarpur which also caused loss of business to the complainant. Learned counsel for the petitioner submits that it is absolutely a contractual nature of dispute between the parties and the claim of the petitioner is that the petitioner’s company supplied more medicines then the security amount deposited by the complainant. Section 406 of the I.P.C. is not made out in view of the fact that it is not alleged that entrusted amount has been misappropriated by the accused company rather it is only alleged that the less supply of the medicines has been made. So far as the offence under Section 420 of I.P.C. is concerned, from averments made in the complaint it does not appear - 3 - that the intention of the petitioner’s company from inception was bad as for some time in pursuance to the agreement both parties ran their business peacefully and subsequently the dispute arose. Hence, it can not be said that the intention of the petitioner was bad from very inception. It is also evident from the fact that the agreement was between the company and the complainant and petitioner was merely agent or an officer of the company. Learned counsel for the complainant submits that substantial money has been misappropriated by the petitioner who was the main responsible person in the company. Considering the allegations levelled in the complaint petition it appears to be absolutely a civil grievance but the criminal forum has been chosen by the complainant as the civil forum has become time consuming which has been deprecated by the Hon’ble Apex Court in the case of Indian Oil Corpn Vs. NEPC India Ltd. & Ors S.C.C.2006(6)736. Paragraph No. 13 of the said judgment which reads as follows: “13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert - 4 - purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sugar Suri V. State of U.P. this Court observed: (SCC P. 643, Para 8). “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” Considering the aforesaid factors, the order of cognizance dated 28.02.2007 with regard to the petitioner in complaint case no.3462(C) of 2006 is hereby quashed. U.K. (Dinesh Kumar Singh,J)