IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27470 of 2008 1. M/S GOEL COLD STORAGE PVT. LTD., AT AND P.S. ARARIA, DSISTRICT-ARARIA. 2. PRADEEP GOEL, SON OF PURUSHOTTAM LAL GOEL, DIRECTOR OF M/S GOEL COLD STORAGE PVT. LTD., RESIDENT OF MOHALLA AND P.S. ARARIA, DISTRICT-ARARIA. 3. JAI PRAKASH GOYAL ALIAS PRAKASH GOYAL, SON OF PURUSHOTTAM LAL GOEL, MANAGER OF M/S GOEL COLD STORAGE PVT. LTD., RESIDENT OF MOHALLA AND P.S. ARARIA, DISTRICT-ARARIA. ………………………………………………………………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. BIHAR RAJYA BEEJ NIGAM LTD. HAVING ITS REGISTERED OFFICE AT BANK ROAD, PATNA, P.S. GANDHI MAIDAN, DISTRICT-PATNA, AT PRESENT SHEIKHPURA, P.O. B.V. COLLEGE, BAILEY ROAD, P.S. AIR PORT, PATNA, DISTRICT- PATNA. ………………………………………………OPPOSITE PARTIES. ----------- For the Petitioners : M/s. Krishna Prasad Singh, Senior Advocate, Shashidhar Jha and Manish Kumar No.3, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mr. Shivajee Pandey, Senior Advocate. -------------- O R D E R This application at the instance of the three petitioners impleaded as accused in Complaint Case No.716(C) of 1994 is for the quashing of the order dated 08.04.1996 passed therein by Sri S.B. Yadav, Judicial Magistrate, First Class, Patna, whereby cognizance has been taken against the accused for the offences punishable under Sections 420 and 406 I.P.C. The Bihar Rajya Beej Nigam Limited (hereinafter referred to as “the Company”) a Public Sector Undertaking, the complainant, - 2 - impleaded herein as O.P. No.2 filed the aforesaid complaint inter alia stating that it is an undertaking engaged in business of procuring and marketing of certified seeds and in connection therewith they procured potato seeds from the farmers after harvesting and storing the same in the cold storage till the sowing season so as to make them available for distribution to the farmers. It is said that for the purpose of hiring space in cold storage the Company invited tenders from the cold storage plants in Bihar in response whereto the petitioners submitted their tender for storing 20,000 quintals of potato in the season and that their cold storage was equipped with all modern facilities. It is said that later petitioner no.2 approached the Managing Director of the Company offering further capacity of storage of 5000 quintals. Accordingly, the Company stored 20, 289.70 quintals of potato in the cold storage of the petitioners on the assurance that the petitioners would provide 24 hours electricity supply in the cold storage keeping its temperature constant and would not exceed 36° -37° Celsius and in the event of power failure they would be provided with the services of generator. It is alleged that the petitioners with ulterior motive did not store the potato in the cold storage immediately and kept it pending in open sun and they also further failed to maintain the prescribed temperature within the cold storage as a result whereof the potato seeds were found damaged causing heavy loss to the Company. On the aforesaid premise, it is alleged that the petitioners with evil intention cheated the complainant Company and also committed breach of trust. - 3 - It has been submitted on behalf of the petitioners that it would be apparent from perusal of the complaint petition that the case is purely of civil nature and no criminal liability could be fastened on the petitioners. It was further submitted that due to unavoidable circumstances the supply of electricity to the cold storage was stopped and even supply of power to the cold storage through generator continuously for 20 days failed to maintain the required temperature within the cold storage as a result whereof the potato seeds got damaged. It is also said that even the potato stored by the petitioners in the said cold storage were damaged and as a result of the damage of the potato and short supply of the electricity the petitioners had to suffer heavy loss and it would be apparent that no wrongful gain has occurred to the petitioners. The further submission on behalf of the petitioners is that the Company has already filed a Money Suit being Money Suit No.384 of 1995 in the court of Subordinate Judge, Patna, claiming compensation and the same is still pending and in the said Suit the said cold storage has been attached by the order of the court and 18.7.2008 has been fixed for framing of issues. Merely because remedy by way of civil suit has been availed of is not an impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the offence alleged. Any transaction involving passing of valuable properties between the parties, the aggrieved party may sue for damages and also file a complaint against the wrong doer for criminal breach of trust or - 4 - cheating. But in that event complaint must disclose essential ingredients of the offence. Here the main offence alleged by the complainant is that the accused committed the offence under Sections 420 and 406 I.P.C. dishonestly by inducing the Company to book space with them for the potato seeds and the defence of the accused is that there was no inducement to deceive and rather it was due to unavoidable circumstances that the supply of electricity to the cold storage was stopped and notwithstanding using a generator the requisite temperature within the cold storage did not become possible as a result whereof the potato seeds god damaged. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It must be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. In the instant case, there is no allegation that the accused made any willful misrepresentation. The Company before engaging the space offered by the accused must have surveyed the space and the facilities promised by the accused before sending the potato seeds for storing in the cold storage. If as per their allegation the potato seeds were left open under the sun they were free to raise objection thereto but there is no reference to the Company having raised any such objection. Having given my anxious thoughts to the submissions raised by the parties, I find it difficult to discern any element of deceit - 5 - in the whole transaction on the part of the accused persons and on the other hand, there appears palpable evidence that the complainant Company had an oblique motive of causing harassment to the accused persons. In the aforesaid circumstances, I am of the opinion that pursuing the instant criminal proceeding would be an abuse of the process of the court and the same cannot be sustained in the eye of law. Accordingly, the application is allowed and the impugned order taking cognizance against the accused persons is hereby quashed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 16th of February, 2009. Pradeep Srivastava/A.F.R.