IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.402 of 2011 RAJ KISHORE MISHRA . --- PETITIONER Versus THE STATE OF BIHAR . ----OPP. PARTY For the petitioner : Mr. Gajendra Kumar Jha, Advocate. For the State : Mr. Ramchandra Singh, APP ----------- 02 11.04.2011 Heard both sides. Petitioner is aggrieved by the appellate order dated 23.12.2010 passed by learned Additional District and Session Judge II, Patna City in Cr. Appeal no. 135 of 2003/284 of 2010 whereby the appellate Court on a reappraisal of the evidence on record dismissed the appeal preferred by the petitioner and confirmed the judgment and order of conviction dated 25.07.2003, passed by learned trial Court in Tr. No. 1255 of 2003 whereby the petitioner was held guilty under Section 409 of the Penal Code and sentenced to undergo R.I. for 03 years with fine. While dismissing the appeal learned appellate Court reduced the sentence from R.I. for 03 years to R.I. for 01 years, with fine having default clause. The prosecution case is that contract work for repair of mortuary cooler in Anatomy Department of NMCH for the year 1997-98, on an estimated cost of Rs. ninty seven thousand and odd was assigned to the petitioner who is owner of M/s Himkon. On proforma bill dated 29.03.1997 he was paid Rs. 30,000/- as advance but after receiving the same the petitioner did not perform the jobs and absconded. Even after repeated requests and directions he did not 2 turn up. It has been alleged that he embezzled a sum of Rs. 30,000/-. The case of the petitioner as appears from his statement made under Section 313 of the Cr. P.C. is/was that he had already executed the entire work and was not paid the entire amount for the work executed by him. 04 prosecution witnesses were examined including the Principal of the Medical College, Head of the Department, the concerned Clerk and the Cashier. Both the Courts below have found that they have consistently supported the case that the petitioner was assigned job and advanced a sum of Rs. 30,000/- but after receiving the amount the repair work of mortuary in Anatomy Department was not done and the petitioner absconded. Learned counsel for the petitioner, while assailing the order submits, that going by the allegations and the supporting materials on record it would be a civil dispute. It is next submitted that the materials on record are not cogent/sufficient enough to prove the charge. Learned APP, appearing on behalf of the State, on the other hand, submits that there is no bar in law in proceeding against in a case which has both civil and criminal consequences. It is submitted that there is concurrent findings of guilt recorded by the two Courts below based on appraisal of evidence, which have not be demonstrated to be perverse. I have considered the submissions advanced on behalf of the parties and perused the materials available on record. Even if the contention of the petitioner that the accusations reflect a civil 3 consequence/liability is accepted the fact of the matter remains that they also constitute criminal liability. The evidences have been critically analyzed by the two Courts below whereafter it has not been found that the charges levelled against him have been proved. This Court does not find any patent illegality/perversity in the consideration of the matter by the two Courts below meriting interference. Application lacks merit. It is, accordingly, dismissed. Sym (Kishore K .Mandal, J)