IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17191 of 2007 1. RAMJI PRASAD 2. Ayodhya Prasad Both sons of Sri Hiralal Prasad, Both residents of village – Station Road, Tenduni, P.S. Bikramganj, District – Rohtas. ……. Petitioners Versus 1. STATE OF BIHAR 2. Dhirendra Singh, Son of Deo Vijay Singh, R/o Station Road, Tenduni, P.S. Bikramganj, District – Rohtas. ….. Opp. Parties ----------- For the Petitioners : Mr. Birju Prasad, Advocate For the State : Mr. J. Upadhayay, A.P.P. For O.P. No. 2 : Mr. Rakesh Kumar Samrendra, Advocate. O R D E R The two petitioners herein who have been arrayed as the only accused in Complaint Case No. 281 (C) of 2006 have prayed for the quashing of the order dated 23.10.2006 / 27.10.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Bikramgunj, Rohtas, whereby he has taken cognizance of offences under sections 323, 379 and 420 I.P.C. and section 138 of the Negotiable Instruments Act (hereinafter referred to as “the N.I.Act”). The complainant one Dhirednra Singh, impleaded herein as O.P. No. 2, filed the aforesaid complaint on 21.6.2006 inter alia stating that an agreement deed was executed on 17.11.2005 between him and petitioner no. 1 wherein he transferred all his rights, goodwill, materials, customers etc. all forming part and parcel of Entertainment Cable Network bearing registration no. 50 / 2000, to - 2 - petitioner no. 1 for a consideration of Rs. 3,75,000/- in payment whereof 9 post-dated cheques were handed over to the complainant. It is said that as the complainant was feeling financial crunch before the post-dated cheques could be encashed, petitioner no. 2, the brother of petitioner no. 1, issued a cheque for Rs. 50,000/- to the complainant which was encashed on 17.11.2005. It is alleged that the complainant in due course deposited the post-dated cheques in his bank account on various dates for their encashment but each of them were returned back uncashed for want of sufficient funds in the account of petitioner no. 1. It is further alleged that on return of post-dated cheque dated December 2005 in January, 2006 the complainant sent a legal notice on 13.1.2006 to the complainant. Similar legal notices were also sent on return of the remaining cheques but they were either not responded to or were refused to be accepted by petitioner no. 1 . The specific allegation of the complainant is that it was with ulterior motive to defraud him that petitioner no. 1 had entered into the agreement and had also issued post-dated cheques notwithstanding the fact that the requisite funds were not available in his account. It has further been alleged that at about 7.30 P.M. on 20.6.2006 the complainant went to the house of the petitioners and requested for handing over the agreed amount of consideration money whereupon the accused persons abused and assaulted him and at the point of revolver took away Rs. 5000/- from his pocket and snatched his wrist watch worth Rs. 1500/- and also extended - 3 - threat that if he lodged any case he would be killed. It has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case by way of counter blast to the informatory petition bearing Misc. Case No. 679 of 2005 and Complaint Case No. 612 of 2005 filed by petitioner no. 1 against the complainant before the Sub Divisional Judicial Magistrate, Bikramganj. In this connection it was submitted that although everything forming the part and parcel of Entertainment Cable Network was agreed to be transferred in favour of petitioner no. 1 the complainant had retained important machines and had not transferred the same and had also taken an excess of Rs. 50,000/-. It is said that when on 10.12.2005 petitioner no. 1 went to the house of the complainant with a request to handover the remaining machines he was severely abused and assaulted by him whereupon he wrote a letter of even date to the Branch Manager, Dhangai Branch of Bhojpur Gramin Bank to stop payment of his cheques issued in favour of the complainant. Finally it was submitted that cognizance has been taken under sections 323, 406, 420 and 120 I.P.C. against the complainant by order dated 6.6.2006. It was finally submitted that even in the first facts stated in the complaint are taken at their face value no apparent criminal offence can be said to have been disclosed and on the contrary the dispute as disclosed was purely of a civil nature and the allegations of overt act committed by the petitioners is concerned that had only been added as ornamental so as to make out a criminal case. - 4 - No counter affidavit has been filed by O.P. No. 2 but in course of his argument, it was submitted by his counsel that from the facts stated in the complaint petition a clear case for trial by the criminal court had been made out and cognizance had been taken only for the overt acts alleged apart from section 138 N.I. Act. The Apex Court in Indian Oil Corporation Vs. N.E.P.C. (AIR 2006 SC 2780) taking into consideration several cases decided by it observed that a complaint can be quashed where the allegations made in the complaint, even if they were taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. It also observed that a given set of facts may make out (a) purely a civil wrong (b) purely a criminal offence or (c) a civil wrong as also a criminal offence. A commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. As observed in the case of G. Sagar Suri Vs. The State of U.P. reported in 2000 (2) SCC 636, it is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a shortcut of other remedies available in law. It was also observed that 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 - 5 - 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. In the aforesaid circumstances what is required to be seen is whether the matter is essentially of civil nature and has been given a cloak of criminal offence. As will appear from the impugned order taking cognizance the cognizance is not in respect of the accused persons violating the commercial transaction / contract but against overt acts allegedly committed by the petitioners when the complainant had gone with request for returning the consideration amount. But here again one has to look at it with great caution and circumspection since the specific case of the petitioners is that the instant case has been filed by way of a counter blast to the earlier case filed by petitioner no. 1 against the complainant wherein cognizance was taken. At the same time this also happens to be the defence of the accused persons. In the given circumstances it would only be meet and proper to dismiss this application and give liberty to the petitioners to raise all these issues at the time of framing of charge. Accordingly with the aforesaid liberty given to the petitioners the application is dismissed. The Patna High Court Dated the 12th November, 2008, Sanjay Pd. / A.F.R. (Abhijit Sinha, J.)