IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10505 of 2005 MUNNA KUMAR Versus STATE OF BIHAR & ANR ----------- For the petitioner: Mr. Anjani Kumar, Advocate For the State : Mr. Upendra Kumar, APP -------- 6 18-7-2008 Heard learned counsel for the petitioner and learned counsel for the State. However, none appears on behalf of O. P.no.2. This application has been filed for quashing the order dated 25.2.2005 passed by Sri Raj Kishore Rai, Judicial Magistrate, 1st class, Patna in complaint case no. 2387 (C)/2003 whereby and where under he has framed charges u/ss 403 and 418 of Penal Code against the petitioner. Shortly stated the case of complainant/ O. P. No. 2 as put in the petition of complaint is that complainant is a whole sale cloth merchant. The petitioner/ accused approached the complainant and introduced himself as retail cloth merchant at Biharsharif in the name and style of M/s Rajgharana. He persuaded the complainant to give clothes on credit as he was not financially sound. The complainant on persuasion of the petitioner gave clothes to the tune of Rs. 51,258/- which the accused received personally at the shop of the complainant. The petitioner/accused after receiving the clothes evaded the payment. He also refused to return the goods. On 18.1.2003 an undertaking was given before the complainant by the accused that he has to pay Rs. 51,258/- and out of which on 18.1.2003 he had paid Rs. 5,000/- to the complainant. According to complainant the rest amount is due and - 2 - when the complainant met him at Ashok Raj Path and demanded the payment the petitioner became angry and threatened him. It appears that after cognizance the petitioner/accused was put upon trial. Before charge the complainant examined two witnesses and the learned Magistrate by order dated 25.2.2005 framed the charges u/ss 403 and 418 of the Penal Code against the petitioner. Against the said order the petitioner has preferred the present application for quashing before this court. Learned counsel appearing on behalf of the petitioner referred to annexure- 4/1 to the application, which is a copy of deposition of PW2, Prem Chandra, and submitted that according to evidence of this witness clothes worth Rs. 65,000-70,000/- was given to the petitioner on credit and out of which Rs. 10,000-15,000/- was paid by the petitioner and about Rs. 51,000/- remained to be paid. Learned counsel further submitted that there is nothing in the evidence of PW2 to show that at the very inception of the contract between the parties there was any intention on the part of petitioner/accused to cheat the complainant. He submitted that on the basis of evidence of the two witnesses examined before the charge no case u/ss 403 and 418 of the Penal Code is made out. He submitted that this case is purely of civil liability. Learned counsel, thus, submitted that continuance of the present prosecution would be an abuse of the process of the court. Thus, the position is that clothes worth Rs. 65,000-70,000/- was given on credit by the complainant to the petitioner/accused and - 3 - he made payment of Rs. 10,000-15,000/- and the rest amount remained due. There is nothing in the evidence of two witnesses examined before charge to show that at the very inception of the transaction there was any intention on the part of the petitioner/accused to cheat the complainant. It further appears from the evidence that during the course of business transaction the petitioner/accused made payment of Rs. 10,000-15,000/-. On the basis of the evidence of two witnesses it appears to be purely a case of civil liability. No criminal offence u/ss 403 and 418 of the Penal Code is made out against the petitioner/accused. The view of this court finds support from the decision reported in 2005 (X) SCC page 261 given in the case of Hotline Teletubes and Components Ltd. and others Vs the State of Bihar & Anr. In the facts and circumstances of the case, the continuation of the present prosecution against the petitioner would be an abuse of the process of the court and to prevent the same this application is allowed and impugned order dated 25.2.2005 as against the petitioner is hereby quashed. However, the parties should now take steps for settlement of their dispute according to law. BKS/ (M. Saran,J.)