IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS NO. 15171 OF 2009 DURGA PARSAD TIWARI, Son of Late Bhanwar Lal Tiwari, Durga Papers Private Limited 410, 4th floor Sherza Estate 5-3-989 Nizam Shahi Road Hyderabad proprietor of Uma Books & publication office at 410, 4th floor, Sherza Estate, 5-3-989- Nizam Shahi Road, Hyderabad. ………..Petitioner Versus 1. THE STATE OF BIHAR 2. MAHENDRA KUMAR MALOO, Son of Shri Bhairudan Maloo, Authorized Manager of M/S/ United Paperboards Ltd., having its registered office at Tulsi Apartment, Govind Mitra Road, P.S. Pirbahore, Patna. ……….Opposite Parties With CRIMINAL MISCELLANEOUS NO. 3317 OF 2009 1. DURGA PRASAD TIWARI, Son of Late Bhanwar Lal Tiwari, Durga Papers Private Limited 410, 4th floor Sherza Estate 5-3-989 Nizam Shahi Road Hyderabad. 2. M/S SHREE DURGA PAPERS PVT. LTD., A company incorporated under the provision of Companies Act 1956 having its registered office at 410, 4th floor, Sherza Estate 5-3-983 Nizam Shahi Road, Hyderabad, Through its Director Durga Prasad Tiwari, Son of Late Bhanwar Lal Tiwari, Nizam Shahi Road, Hyderabad. …………Petitioners Versus 1. THE STATE OF BIHAR 2. MAHENDRA KUMAR MALOO, Son of Shri Bhairudan Maloo, Authorized Manager of M/S/ United Paperboards Ltd., having its registered office at Tulsi Apartment, Govind Mitra Road, P.S. Pirbahore, Patna. ………..Opposite Parties ----------- For the Petitioners :- Mr. Sanjeev Kumar Mishra, Adv. For the Opposite Parties :- Mr. S.D. Sanjay, Adv. Mr. Gautum Kejriwal, Adv. ----------- 12/- 15-02-2011 Heard learned counsels representing the parties. Since in both the applications almost similar facts and legal point involved at the request of learned counsels they are heard together and being disposed of by this composite order 2 at the stage of admission itself. 2. In former application order dated 17.02.2007 taking cognizance for the offence under Sections 406 and 420 of the Indian Penal Code by the Court of Sri A.K. Singh, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 2981(C) of 2006 is under challenge. Whereas, in the latter application order dated 09.10.2007 taking cognizance for the offence under Section 420 of the Indian Penal Code in Complaint Case No. 2984(C) of 2006 by the Court of Sri Ashok Kumar Singh, Judicial Magistrate, 1st Class, Patna is under challenge. 3. In both these applications under Section 482 of the Code of Criminal Procedure seeking quashing of the impugned orders aforementioned, respective complaint petitions were filed by opposite party no. 2 with assertions that the petitioner approached the complainant to enter into business relating to supply of Cream Wove SDLX & Paper Boards with them and as per the complainant initially dealing between the parties was good. Papers were supplied by the complainant and in return due payment was made in time, but subsequently, in earlier complaint a sum of Rs. 2, 72,094/-, whereas in latter a sum of Rs. 2, 88,278/- became due against the goods supplied and received through transporter. But in spite of repeated demands, reminders in writing or telephonic, nothing could be paid against the dues giving rise to filing of the complaint petitions before the Court. It is also contended 3 in the complaint petitions that the petitioners have dishonest intention and committed breach of trust etc. After filing of the complaint, the Courts concerned recorded the statement of the complainant and a few witnesses on consideration thereof passed the impugned orders, quashing of which is sought by filing the two applications aforementioned by the accused petitioners. 4. The main contention as advanced by learned counsel for the petitioners is that no criminal offence is made out against the petitioners and the dispute, if any, is of accounting in commercial transaction of course by nature civil dispute for which no criminal proceeding may be initiated or entertained. It is further submitted that mere failure to keep up promise, subsequently such a culpable intention right at the beginning that it is when he made the promise cannot be presumed, to support the contentions reliance has been placed upon two decisions of this Court, one in a case of “Surendra Kapoor vs. Ram Prasad Khemka & Anr. reported in 2003(4) PLJR 122”, where in decision of this Court in case of Ram Prakash Mathr @ Ladlay Mathur vs. State of Bihar & Anr. [(1998 (2) PLJR 288)] was referred and relied upon where in paragraph – 7 reads as such:- “In the facts and circumstances of this case, therefore, I am of the opinion that no case has been made out either under section 420 or 4 under section 406 of the Indian Penal Code. Even assuming, prima facie, that all the allegations in the complaint are accepted to be true, they merely amount to breach of contract and cannot give rise to criminal prosecution. There is nothing in the complaint to show that the petitioner had dishonest or fraudulent intention at the time the complainant parted with the money nor did the complainant indicate that the petitioner had inducted him to pay the amount parted with him. The mere fact that the accused persons did not abide by their commitment as to supply of the print of the film, criminal liability cannot be fastened. It is settled by the several decisions of this Court as well as the apex Court that, when it would appear from the complaint petition that there was a concluded contract and there was no dishonest or fraudulent intention of the accused persons, it would be a case of breach of the contract trust in case the terms of the contract are not complied with. In this connection 5 reference may be made to the case of Hari Prasad Chamaria vs. Bishun Kumar Surekha and others (AIR 1974 SC 301)”. 5. Similar view has been taken by another Bench of this Court in a case of “Sanjay Suchanti & Anr. vs. State of Bihar & Anr. reported in 2004(4) PLJR 222”. In the instant case also on careful consideration of the averments made in the complaint petitions, containing plea of delivery of goods but alleged non-payment of money in terms of agreement, there nothing appears attracting the ingredients required for committing the offence of criminal breach of trust inviting Penal Section 406 and also there is nothing attracting the offence of cheating and dishonest inducement for delivery of property attracting Penal Section 420 of the Indian Penal Code. 6. Learned counsel for the complainant- opposite party on basis of decision of Apex Court in a case “MEDCHL CHEMICALS & PHARMA (P) LTD. Versus BIOLOGICAL E. LTD. AND OTHERS reported in (2000) 3 SCC 268”, tried to impress upon that only because the case relates to commercial transaction, it should not be discarded, specially when it attracts “Civic Profile” as well as “Criminal Outfit”. Further, on basis of one unreported decision dated 01.07.2010 by a Bench of this Court in a case of “Narendra Kumar Anchalia @ Naro Anchalia & Anr. vs. State of Bihar & Anr. in Cr. Misc. No. 1227 of 2000”, it is submitted that it 6 is not necessary for commission of criminal offence that dishonest intention must be surviving since beginning it may occur even subsequently, but on careful consideration of rival contentions and materials available on record, I find that in the instant case which is purely based on commercial transaction and only to enforce compliance of alleged part performance i.e. payment against supply, no ingredient attracting criminal offence emerges. 7. Here, it may not be out of place to mention as noticed by the Court that for quick determination, the matters relating to civil dispute jurisdiction of Criminal Court are in general being invoked giving rise to several criminal cases. It is true that due to several reasons competent Courts are not in a position to decide civil disputes as early as expected from them, but this cannot be a ground for initiation of criminal proceedings by way of adopting short-cut measures. 8. Another reason for initiating criminal proceeding as evident is to avoid payment of Court fees which are ordinarily required while proceeding with disputes in competent Civil Courts, but again no one can avail such privilege and be permitted to put unnecessary burdens upon heavily packed Criminal Courts. The aggrieved persons may invoke other remedies through Legal Services Authority and take shelter of Lok Adalats etc., wherein the parties may get their disputes redressed/settled by amicable settlement, 7 arbitration/reconciliation/mediation etc., in short span of time and even without parting with money, the reasons of failure, on consideration of rival contention, it so happen may also be decisive factor for future legal course to be adopted, but in stead of doing so, number of criminal cases in subordinate Courts is on rise, consequently before the superior Courts also. The above tendency needs a break otherwise there shall be every chance of abuse of process of law in the situation alike instant case. 9. Consequent upon above finding that in the instant case dispute between the parties is purely of civil nature, relating to commercial transaction, the impugned orders are hereby quashed and the applications stand allowed. Praveen/- ( Akhilesh Chandra, J.)