IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33087 of 2007 1. Sudarshan Singh 2. Satyendra Narayan Singh 3 Sunil Kumar Singh 4. Sarangdhar Singh 5. Shashikant Singh All sons of Late Tribhuan Prasad Singh, resident of Village- Ramadaschak, P.S. Dighwara in the district of Saran at Chapra. -------- ------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Rakesh Kumar, son of Shri Shyam Narain Singh, Managing Director of M/S Khayati Construction Private Limited, 120, Anandpuri, Boring Canal Road, P.S. Budha Colony in the District of Patna. ------- ------ Opp.Parties. ----------- For the petitioners : Mr. Satyendra Kumar Singh For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Mr. Ashok Kumar, Advocate ________ O R D E R All the five persons arrayed as accused in Complaint Case No.1911 ( C) of 2004, through this application, have prayed for the quashing of the order dated 25.4.2007 passed therein by the learned Sub Divisional Judicial Magistrate, Patna whereby he has rejected the discharge petition filed under Section 245 Cr.P.C. by the petitioners. The allegation, according to the complaint, is that the complainant, impleaded herein as Opp.Party no.2, is the Managing Director of M/S Khayati Construction Private Limited ( herein after referred to as the “Builder” ) who carries on business of developing and constructing multi-storeyed buildings . It is said that the complainant built up ground plus three floors on the land, purchased by - 2 - him through sale deeds executed by the petitioners. Subsequently, some other persons came and claimed their title and possession over the land in question. The complainant was shocked as he had invested huge sum of money on the construction and when he demanded Rs.23, 50,000/- from the accused persons on account of their having fraudulently entered into development agreement with the complainant and fraudulently having received the said amount according to the development agreement and had concealed the facts of sale of the said land to one Bengali Prasad and others, they assured to return the same within a month or two, but thereafter they refused to return the money. It was alleged that the petitioners had induced the complainant to pay a sum of Rs.23, 50,000/-by playing fraud. A counter affidavit has been filed by Opp.Party no.2 showing that the complainant subsequently had entered into an agreement with one Om Prakash Mishra and Ved Prakash Mishra. It has been stated that a criminal case, bearing Patliputra P.S. Case No.132 of 2003 had been filed by Sharat Chandra Mishra holding power of attorney of Ved Prakash Mishra and Om Prakash Mishra against the petitioners as also against him under Sections 467,468,471, 419,420, 120B and other allied Sections of the Penal Code. in connection with the land in question. Prima facie, it appears to be a case with the full trappings of a Civil Suit. It would further appear from perusal of agreement entered into between the parties which is a part and parcel of the complaint petition filed by the petitioners as well as Opp. Party no.2 that the - 3 - purchaser had a power to rescind the agreement and in that event the vendors i.e. the petitioners would refund the earnest money with all losses as well as damages caused to the complainant. The agreement also discloses that the parties have the right to file suit for specific performance of contract with or without damage. The High Court ordinarily would not interfere with a criminal proceeding, but if the proceeding has been instituted for a civil wrong as distinguished from a criminal offence the Court can in exercise of its inherent power do so. The Hon’ble Apex Court in the case of G.Sagar Suri – Vrs. State of U.P., reported in (2000) 2 SCC , 636 noticed with anxious concern the growing tendency in business circle to convert purely civil disputes into criminal cases and observed: “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” Then again in Indian Oil Corporation Vrs. NEPC India Ltd. & Ors., reported in ( 2006) 6 SCC 736 the Apex Court observed: “While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step - 4 - that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.” Several other Judgments of both the Apex Court as also this Court have observed that any effort to settle the civil disputes and claims which do not involve any criminal offences by applying pressure through criminal prosecution should be deprecated and discouraged . From the facts of the present case, the documents filed by the complainant itself shows that it is a case of civil dispute and specific performance of contract and any effort to enmesh the petitioners in frivolous criminal prosecution prima facie appears to be an abuse of the process of law. In other words, the conclusion is inescapable that invoking the jurisdiction of the criminal court in the background aforesaid is clearly an abuse of the process of law and the prosecution against the petitioners for the offences alleged is liable to be quashed which I proceed to do . The application is allowed and the impugned order is hereby quashed. ( Abhijit Sinha, J) Patna High Court, Patna Dated : the 24th October,2008 Nawal Kishore Singh/ A.F.R.