IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40639 of 2009 SARITA JAIN & ORS Versus STATE OF BIHAR & ANR ----------- 03 19/03/2010 Heard learned counsel for the petitioners and learned counsel for the State. No one appears on behalf of opposite party no.-2, though notice has been served upon their counsel through Court of the Judicial Magistrate, Ist Class at Patna, where the Complaint Case is pending. It is, therefore, now apparent that opposite party no.-2 is fully aware of not only the pendency of the present case, but even of the interim orders passed on 19.11.2009. Nonetheless, no one appears on its behalf to oppose this application. The Court has heard the learned counsel for the petitioners and leaned counsel for the State. Complaint Case No. 211 (C) of 1999 has been filed under Sections 420, 120B of the I.P.C. Learned counsel for the petitioners has taken the Court through the allegations made in the complaint as also the statement on S.A. From a conjoint reading of the two, it transpires that there was a written agreement between the parties. It related to the appointment of the complainant as a consignee agent for certain 2 brands of Coconut oil produced and marketed by the petitioners. In breach of the agreement the petitioners allegedly appointed certain other dealers. Commission money was not paid in time to the complainant. The complainant took further premises on rent which, as per the agreement, was to be paid by the petitioners who failed to do so. The petitioners allegedly have failed to settle accounts despite promise and ultimately dis- continued marketing of their products through the complainant, leaving the complainant with a large quantity of goods lying with him of which the petitioners have taken no care and that they had allegedly supplied sub-standard quality goods. There is no detail of the alleged nature of sub-standard quality of goods and on what date it was supplied, what protest and when it was made by the complainant and neither has any statement been made to that effect on S.A. Learned counsel for the petitioners is, therefore, right in his submission that the allegations of sub- standard product is a mere embellishment to lend weight to the allegations. He emphasizes from the statement on S.A. that the entire issue revolves around a dispute with regard to payment under a contractual agreement. 3 The Apex Court considering a challenge under Section 482 Cr.P.C. arising out of a contract for sale and purchase of welding rods inter alia under Section 420 I.P.C. in (2007) 7 SCC 373 (VIR PRAKASH SHARMA VERSUS ANIL KUMAR AGARWAL AND ANOTHER) held as follows at paragraphs 12 and 13:- “12. In Hridaya Ranjan Prasad Verma V. State of Bihar, this Court held: (SCC pp. 176-77, paras 14-15) “14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is, the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that 4 he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” 13. The ingredients of Section 420 of the Penal Code are as follows: (i) Deception of any persons; (ii) Fraudulently of dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.” This Court, therefore, is satisfied that from the allegations themselves as made out in the complaint read with the statement on S.A., it discloses a pure civil dispute with no criminality element involved in it warranting subjecting the petitioners to the rigours of a criminal trial. The order of cognizance dated 20.5.2009 and the entire proceedings in Complaint Case No. 211 (C) of 1999, pending before the Judicial Magistrate, Ist Class at Patna is accordingly quashed. The application stands allowed. P.K. ( Navin Sinha, J.)