IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17512 of 1998 1. M/S NILGIRI HERBALS PVT.LTD, NILGIRI HOUSE, 177-A, CADELL ROAD, MAHIM, MUMBAI, 400 016, THROUGH ITS MANAGING DIRECTOR, MR. SHABBIR A. PATEL, 2. MR. SHABBIR A. PATEL, SON OF MR. ABBAS PATEL, R/O 501, SUMMER VILLA, 7TH ROAD, SANTACRUZ (EAST), MUMBAI-400 055,……………………………………………………………...PETITIONER Versus 1. STATE OF BIHAR 2. THE PATLIPUTRA AGENCIES, GOVIND MITRA ROAD (NEAR HIND ART COTTAGE), PATNA-800 004 THOROUGH ITS MANAGER SRI PAWAN WALLIA SON OF SRI K.S. WALLIA…………OPPOSITE PARTIES ----------- For petitioners:-Mr. Pushkar Narain Shahi, Advocate Mr. Ritesh Kumar No.1, Advocate For State :-Mr. Lala Kailash Bihari Prasad, APP For O.P. No.2 :-Mr. Rajiv Roy, Advocate ----------- 09. 02-Apr-2010 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the complainant, O.P. No.2. 2. The petitioners have prayed for quashing of the entire criminal case arising out of Complaint Case No. 444(C)/98 pending in the court of Judicial Magistrate, 1st Class, Patna. They also have prayed for quashing of order of cognizance dated 22.5.1998 whereby cognizance was taken for an offence under Sections 420 and 120B of the Indian Penal Code and summons have been issued against the petitioners. 2 3. The only point advanced on behalf of the petitioners is that the allegations revealed that earlier to the alleged breach of trust and cheating the parties were having business relation-ship and since the beginning there was no intention to cheat or defraud the complainant. It has been submitted that non payment of Rs.18,000/- and odd can give rise to only civil liabilities and hence criminal case should not be permitted to continue. In support of this proposition reliance has been placed upon a recent judgment of the Apex Court in the case of Sharon Michael & Ors Vs. State of Tamil Nadu and Anr, (2009) 3 SCC 375. 4. On the other hand, learned counsel for the complainant has placed the contents of the petition contained in Annexure-1 to highlight that according to the allegations the solemn understanding that no other stockist would be appointed without taking consent of the complainant was violated and for the defective goods which were liable to be credited, the outstanding claims were not paid in spite of repeated request when in fact the claims were never denied and always assurance was given that the claim is going to be settled. 3 5. According to learned counsel for the complainant, it is not the case of simple denial of payment of Rs.18,000/- but also a breach of trust that no other stockist would be appointed by the accused persons without taking the complainant in the confidence. 6. It may be noted that the earlier orders show that attempt for compromise was made between the parties but the petitioners even after lapse of more than 12 years and in spite of assurance that they will pay admitted dues, did not agree to compensate the complainant by paying a lump sum amount of Rs.50,000/- toward loss, damages and harassment. 7. On considering the allegations made in the complaint petition and entire facts and circumstances, in the considered opinion of this Court, it would not be proper to hold at this juncture that the allegations do not make out breach of trust and cheating. 8. So far as the judgment cited above is concerned, in that case the FIR contained details of terms of contract existing between the parties and allegations were confined only in relation to execution of the contract. In the 4 facts of that case, it was held by the Apex Court that no case of criminal misconduct had been made out before the formation of the contract. In the present case, the grievance is not in relation to the business transactions when they were going on smoothly and on a happy note but the grievance is to the breach of trust in appointing another stockist violating the assurance given to the complainant and the subsequent act of cheating by ignoring to pay the admitted dues even after assurance. 9. In the facts of the case, this Court finds no good ground to quash the criminal case. This application is, therefore, dismissed. perwez (Shiva Kirti Singh, J.)