IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3755 of 2009 Kameshwar Pd. Sinha, son of Late Vindhyachal Pd. Sinha, Resident of Civil Line Buxar, P.S. and District-Buxar. …….Petitioner. Versus 1. The State of Bihar. 2. Ram Prakash Chaubey, S/o Dharam Deo Chaubey, R/o Dumari, P.S. Semari, District- Buxar. …..Opposite Parties. For the petitioner :- Mr. Ajit Kumar Singh, Advocate. For the State :- Mr. Amarendra Prasad, A.P.P. ----------- 3. 29.11.2010. Heard. This criminal miscellaneous petition has been filed for quashing the order dated 16. 08. 2008, passed in Buxar (T) Case No. 299/04 by the Chief Judicial Magistrate, Buxar, by which he has taken cognizance against the petitioner under Sections 420 and 406 of the Indian Penal code. The prosecution case in the complaint petition is that the petitioner impressed upon the informant/complainant as Manager of Verona Commercial Credit & Investment Co. Ltd. to deposit Rs.200/- per month then he will be paid a lump sum of Rs. 16,130/-. The informant started deposit Rs. 200/- per month since 14.08.1991. Again after petitioner impressed the informant/complainant to deposit amount in lump sum which will be doubled within a period of four years. Then on 15. 07. 1995 he deposit 2 Rs. 6,500/- and again having impressed he deposit Rs. 17,000/- on 30.11.1995. However, on maturity in 1996, the petitioner gave a cheque of Rs.16,130/-, but the said cheque was bounced and so the informant doubted the conduct of the petitioner. However, the petitioner impressed the informant that there is some technical defect, he will get the amount. However, again a cheque of Rs., 16,500/- was given to the informant, but the same was again bounced and the informant did not get any amount and hence, it is alleged that forged papers issued in the name of the company. Learned counsel for the petitioner has contended that as money was paid in 1991, but the case has been filed in the year 2004 and hence it has further been contended that mere breach of promise will not gave rise to criminal liability and mere breach of contract pure and simple is a civil dispute and has placed reliance upon decision 2009 (4) PLJR page 27 and 2007 (12) SCC 1. It is necessary to note that he was fraudulent at the time of making of promise. It has further been contended that it has come that one Bhabar Gope, Managing Director of the said company and the petitioner was appointed in the company and hence, if it is a mere breach of promise is a civil dispute 3 and no criminal prosecution is required. Learned counsel for the State however, contended that petitioner was a person who was alleged to have impressed the informant to make deposit both by receiving deposits and lump sum and that amount will be doubled and hefty amount will be given in lump sum on maturity hence abated to deposit. However, taking into consideration the respective submissions, question for consideration whether the criminal act is made out and the criminal proceeding can be quashed. However, the question for consideration as to whether criminal intent is made or whether the allegation is pure and simple is a civil dispute. However, learned counsel for the petitioner has contended that during grant of anticipatory bail he has deposited the amount of Rs. 23,500/-. However, the deposit of amount will not absolve his criminal liability if any. However, taking into the consideration the fact, there is allegation that petitioner impressed upon the informant to deposit the amount and in pursuance thereof, informant deposited the money and hence amount was paid on inducement. However, the said amount even on maturity was not paid. However, 4 cheque was issued but the cheque was bounced even at the first instance. Thereafter, having another cheque was given and it is also alleged that said cheque was even forged. However, on the basis of this fact, question for consideration whether it can be infer the intention of the petitioner at the time of first investment in pursuance of which informant started deposit money. However, learned counsel for the petitioner has relied upon decision reported in 2009 (4) PLJR page 27. The fact of the case in 2009 (4) PLJR that the appellant entered into an agreement for sale of 13 acres of land with respondent no. 2 as a property dealer on payment of Rs. 7,00,000/- made in advance. Again a sum of Rs. 14,20,000/- paid but rest amount not paid. The appellant executed a deed of sale in favour of another person Balbir Singh and others and hence under the facts and circumstances it was held to be a civil dispute and remedy is to file a suit for specific performance. However, under the facts and circumstances 2009 (4) P.LJR. is quite different as held it was a case of breach of contract which does not fit in the present case. However, decision reported in 2007 (12) SCC, an advertisement was issued in the newspaper inviting bids from the eligible contractors to construct 5 the ghat in consideration of 13.5 bighas out of the total 26 bighas ghat was constructed. On the same date a receipt of Rs. 17,92,000/ lakhs (approximately) was issued by the Sabha to Respondent No. 3 as an adjustment towards the cost of construction of the ghat for which the said of 13.5 bighas was transferred by executing a general power of attorney dated 13. 12. 1996 in favour of Respondent No. 3. However, the balance amount of Rs. 10,00,000/- had to be paid by 31. 03. 1997and according to the Sabha, time was the essence of the contract and Respondent No. 3 had failed to pay the balance amount. Hence, in the facts and circumstances of the case, held that Section 420 and 467 of the Indian Penal Code is not made out. Section 415 defines cheating and under Section 415 the first Act is to induce fraudulently and dishonest to deliver property to any person and second class of act is to omit to do anything and it has been held that in both the cases intention is the gist of the offence. However, under the facts and circumstances of the present case there is allegation that petitioner inducted or induced to deliver property or money for investment and it has to be established that such induction was a fraudulent intention. However, the informant invests the amount thrice on inducement but 6 on maturity he get the cheque which bounced back, hence intention could well be inferred from the contract. However, taking into consideration the facts and circumstances, it could well infer prima facie that the petitioner had fraudulent intention. However, at this stage of cognizance the only fact to be taken into consideration is whether prima facie case is made out. However, having regard to the facts and circumstances of the case there is allegation of inducement and intention for inducement on fact and circumstance appear to be fraudulent and dishonest and hence prima facie case is made out and ratio decided in the two decisions relied by the petitioner is not applicable to the facts and circumstances of the present case. Hence, I do not find any merit in the petition and hence the petition is hereby dismissed. m.p. ( Gopal Prasad, J.)