IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.52070 of 2007 1. M/S GHERZI EASTERN LTD.(H.O.) Wing ‘A’ Raheja Point 1, Pandit Jawahar Lal Nehru Road, Vakola, Santa Cruz (E), Mumbail-400055 through Sri Anoop Singh, son of late Dr. Prem Singh, Resident of 254, Patliputra Colony, Patna. 2. A. K. Dasgupta, son of Nirmalchandra Dasgupta, Ex. President & CEO of M/s Gherzi Eastern Limited, (H.O.) Wing ‘A’ Raheja Point 1, Pandit Jawahar Lal Nehru Road, Vakola, Santa Cruz (E), Mumbail-400055. 3. D. R. Chatterjee, son of Late Anathbandu Chaterjee, Resident of 16, Mahanirban Road, Kolkata-29, 4. Sati Nath Banerjee, son of Late Samarendra Nath Banerjee, Resident of 16, Mahanirban Road, Kolkata-29. ...Petitioners Versus 1. THE STATE OF BIHAR & 2. M/s Transtek Consultants, C/o Sudhanjali, Near Ganga Market, Shivpuri, P.S. Shastri Nagar, Patna- 800023, through its Chief Executive Officer S. K. Verma …Opposite Parties ----------- 5/ 19.03.2010 Heard the parties. This application has been filed for quashing the entire proceeding including the order dated 5.4.2007 passed by Sri D. M. Tripathi, Judicial Magistrate, 1st class, Patna, in Complaint Case no.3805 © of 2006, by which he has taken cognizance under sections 420, 406 and 120-B of the Indian Penal Code. The case of the opposite party no.2 is that it was a sub- consultant in a project of laying four lanes and strengthening the existing two lanes of road between Aurangabad to Barwa Adda in Bihar. In February, 1998, the accused-company approached the complainant-company for subletting the contract to them and on the complainant-company agreeing to do so the accused-company approved their rates by a letter dated 23.5.1998. The accused-company again requested the complainant- company for subletting another piece of work and approved its rates and confirmed grant of project work to them by a letter dated 14.1.1999. After accomplishment of the work - 2 - sublet to the complainant-company, it raised two bills on the accused- company for a total sum of Rs.51.33 lacs. The accused-company paid the complainant company a sum of Rs.44.50 lacs but withheld a sum of Rs.6.83 lacs and this gave rise to the present complaint. After examination of three witnesses under section 202 Code of Criminal Procedure, the court took cognizance for the offence under sections 406, 420, 120-B of the Indian Penal Code by the order dated 5.4.2007. Subsequent to the cognizance and warrant of arrest, the petitioners approached the court for grant of anticipatory bail which was allowed by the court below on the condition that it would repay Rs.6.83 lacs to the complainant-company which was due to it. The accused persons did so as is evident from Annexure-3 series and the same was accepted by the accused-company without protest. The complainant despite having learnt of the condition for grant of bail to the petitioners did not lodge any protest anywhere and accepted the due amount without demur. At this stage, this court would view it as acceptance of the complainant-company as an end to the dispute between them. Also it is well settled principle of law that to make out the ingredients under section 420 of the Indian Penal Code, deception at the initial stage or at its inception has to be demonstrated by the complainant. In the present case, on perusal of the complaint, I find that apart from enumerating the background of the agreement between - 3 - the parties, there is absolutely no averment that the petitioners ever intended to cheat the complainant-company. Moreover, the fact that out of Rs.51.33 lacs, Rs. 44.50 lacs had been paid to the complainant- company demonstrates that it is only a case of financial dispute between the parties and that too with regard to a very meagre amount comparatively. Since, the entire complaint hinges on a complaint of non-fulfillment of partial obligation arising out of a contract by no stretch of imagination, can it be said that offence under section 406 of the Indian Penal Code is made out against the accused persons. In the circumstances, this application is allowed and the order dated 5.4.2007 passed by Sri D. M. Tripathi, Judicial Magistrate, 1st Class, Patna, in Complaint case no.3805 © of 2006 taking cognizance against the petitioners is hereby quashed. JA/- (Anjana Prakash, J.)