Shashi Kant, J.@mdashHeard Sri C.K. Parekh, learned counsel for the applicant, learned AGA for the State of U.P. and Sri Ramanuj Tripathi, learned counsel for opposite party No. 2. This application under Section 482 Criminal Procedure Code, 1973 (in short ''Cr.P.C.'') has been filed for quashing of complaint case No. 84 of 2010, under Section 406 and 420 Indian Penal Code, 1860 (in short IPC) pending in the Court of 9th Additional Chief Judicial Magistrate, Varanasi as well as quashing of the complaint dated 8.4.2011.
2. The brief facts of this case as transpire from the record are as under:
2.1 A criminal complaint (Annexure 1) was filed on 8.4.2011 by O.P. No. 2 - Sri Balak Kumar Kashyap (hereinafter referred to as ''complainant'') in the Court of Additional Chief Judicial Magistrate, Varanasi under Section 420 and 406 of I.P.C., alleging therein that there was business dealing from 30.6.2006 to 1.11.2007, between the accused applicant (hereinafter referred to as ''applicant'') and O.P. No. 2. During that period there was a firm Surya Hydraulics Private Limited which was manufacturing Submersible Pump, Mono Block Pump, Selvel Pump etc.
2.2 In past the complainant used to return back defective or unserviceable articles and M/s. Surya Hydraulics Private Limited used to acknowledge, on receiving back those articles.
2.3 The amount of above sent back articles was adjusted by issuing credit notes. The complainant also returned/sent back articles on 4.12.2007 through Challan No. 406/Bilty No. 989 dated 4.12.2007 of Rs. 84,367/-. He again sent on 1.12.2008 Bilty No. 1321/Challan No. 411 of Rs. 90,490/- and Bilty No. 1233/Challan No. 412 of Rs. 26,997 and lastly on 26.2.2008 article of Rs. 48,640/- were returned through Bilty No. 15654 Challan No. 417 but accused persons neither acknowledged receipt of said return back articles nor issued any credit note. As such amount of Rs. 8,32,086/- as value of the returned/back articles is due against the accused persons.
2.4 The complainant sent a letter dated 7.4.2008, with request to issue credit note of Rs. 2,59,274/- against returned/back articles but neither credit notes were given nor returned back articles were exchanged, nor their price was paid or adjusted. The complainant made personal contacts to the accused persons on various dates but they gave only false assurances, due to that complainant sent a legal notice dated 18.2.2011 (Annexure 2) to the accused persons, for delivery of goods against returned/back articles or to make payment of their price otherwise a criminal case has to be filed against them but the accused persons refused to take notice. Having no other option the above referred complaint was filed against accused persons.
2.5 The above referred complaint was registered as Complaint Case No. 84 of 2011.
2.6 Learned Lower Court recorded statements of complainant under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. and summoned the applicant under Section 406 and 420 IPC, vide order dated 4.10.2011. A boilable warrant was also issued against the applicant vide order dated 28.2.2012.
2.7 Feeling aggrieved by the above orders, passed by the learned Lower Court, the applicant filed this application under Section 482 Cr.P.C.
2.8 Vide order dated 30.3.2012 the matter was referred to Mediation Center of this Court and proceedings of the learned Court below was stayed. Subsequently, it is informed at the Bar that mediation could not succeed.
3. I have considered the rival arguments of the learned counsel for parties and perused the record.
4. Sri C.K. Parikh, learned counsel for the applicant argued that:
4.1 The complainant did not mention in the complaint or in the documents or in the statements that it is the company with whom, he dealt with. Individual were Directors and not the Proprietors.
4.2 The complainant intentionally suppressed and did not file the ledger account duly audited by Chartered Accountant for the total business conducted by the complainant with the applicant company. He avoided to file his Bank statements because that material was supplied on credit and no advance payment was received.
4.3 The credit notes were issued to Balak Ram''s Firm. On the other hand there are outstanding payment against Balak Ram''s Firm. The impugned amount of credit note was deducted from outstanding balance. Whatsoever the goods were received back, the credit notes issued for them. The applicant''s organization did not provide credit note for the goods received back out of warranty period. The goods received beyond the warranty period could not be given credit note. However no such goods were received back as alleged.
4.4 The complainant did not produce or enclose the alleged credit notes dated 23.4.2007 and 31.3.2007. These credit notes show that the payment of Rs. 17,32,635 was not made by the complainant. It confirms that payment had never been made by the complainant in advance.
4.5 In a private limited company, Directors cannot be impleaded as a party by name. The company neither impleaded in the complaint nor made accused. There are inherent errors in the complaint and the proceedings.
4.6 The challan No. 437 was issued in name of M/s. Surya Service Centre, Varanasi. It was not sent to M/s. Surya Hydraulics Private Limited Agra as mentioned in other challan such as builty GR No. 15654 dated 26.2.2008.
4.7 It is not disclosed by the complainant that M/s. Surya Hydraulics Private Limited is firm or company. It is also not disclosed that who are dealing on behalf of the said firm or company with complainant. In absence of allegations that applicant was incharge and dealing directly with the complainant, no offence at all-is made out against the applicant.
4.8 There is discrepancy of dates in four challans as well as their concerning bilty. For example challan No. 406 is dated 4.12.2007. Its corresponding bilty number is 989 which is also dated 4.12.2007. However there is no receiving or delivery of said items to M/s. Surya Hydraulics Private Limited. No receiving is given by accused applicant. Hence there is presumption that goods shown in the challan No. 406 and bilty No. 989 dated 4.12.2007 had never been delivered to the accused or received by the accused.
4.9 To buttress his arguments learned counsel for applicant placed reliance on following decisions:
5. Per contra learned AGA for the State of U.P. and Sri Ramanuj Tripathi, learned counsel for opposite party No. 2 have urged that:
5.1 The applicant is very well shown and described as Director of Surya Hydraulics Pvt. Limited and his wife Smt. Sunita Singh is shown and described as Proprietor of the same and the address of both persons (applicant and his wife) are also shown to be same.
5.2 In fact M/s. Surya Hydraulics Private Limited is neither a company nor a firm and in fact it is a Factory of Submersible Pumps, Monoblock Pumps, Selpriming Pumps, Centrifuged Pump and Selvel Pumps which were sold by the applicants to the proprietors of the firms. Indeed the applicant showed himself as M/s. Surya Hydraulics Pvt. Ltd. A perusal of complaint makes it clear that the applicant and his wife were in business dealing with the deponent w.e.f. 30.6.2006 to 1.11.2007 (this period can be explained in two phases like w.e.f. 30.6.2006 to 31.3.2007 and again w.e.f. 1.4.2007 to 1.11.2007).
5.3 The applicant/accused did not acknowledge all the returned goods for which O.P. No. 2 wrote him from time to time as is evident from registry receipts and courier receipts (annexure-CA-1).
5.4 It is crystal clear from para-2 of the complaint that he used to make payments in cash for the goods as mentioned above. It is clear that no amount of returned damaged and burnt pumps mentioned in paragraph No. 2 of the complaint was adjusted and only credit notes were given to the O.P. No. 2 in this regard.
5.5 It is wrong to say that the applicant supplied the goods to the deponent on credit facility, in fact no default was committed by the O.P. No. 2 in payment. It is relevant to point out that the advance payment by the deponent was credited by the applicant/accused as is evident from the perusal of credit notes dated 31.3.2007, 23.4.2007, 1.6.2007, 13.6.2007, 11.10.2007 and 18.10.2007 (annexure CA-2). It is also corroborated from the credit notes issued by applicant/accused saying that he was crediting in the account of O.P. No. 2 with various amounts (annexure CA-2).
5.6 The complaint is limited only regarding some goods and not all mentioned in para-3.
5.7 In para-4 (second line) of the complaint there is misprint in the amount which will be Rs. 8,32,086 and not 83206 and therefore it can be said that the total amount of goods/pumps returned by the deponent to the accused/applicant is Rs. 8,32,086/- as has been mentioned in the 7th line of para - 4 of the complaint.
5.8 In the complaint the amount of Rs. 2,59,274/- is mentioned only for issuing credit notes regarding some goods since credit notes regarding rest of the goods were already received by O.P. No. 2.
5.9 It is self evident from the credit note (annexure CA-2) that the applicant himself or some body on his behalf is the receiving authority and from the perusal of credit note dated 23.4.2007 it is clear that the accused/applicant had the knowledge of the return of goods by the O.P. No. 2.
5.10 No complaint has ever been made by the applicant/accused regarding the averments in the para 27 of the affidavit and therefore he cannot be permitted to raise such objection for the first time in the present case. Challan No. 417 is correct challan number and not 437.
5.11 The valuation of goods are not shown in challans, as per business rules and same were shown in the complaint itself.
5.12 The innocence, if any, of the applicant/accused will be proved or disproved only after conclusion of trial after leading evidence and there is no need for enclosing any document.
5.13 In fact there is no question of termination of distributorship of the O.P. No. 2 by the applicant who only sold water pumps to O.P. No. 2 and took payment. Alleged letter dated 3.3.2008 mentioned in para 31 of the affidavit is forged letter and the signature of the O.P. No. 2 is also forged. Therefore, it can be said that the applicant has not come before this Hon''ble Court with clean hands.
5.14 The applicants sometime said that M/s. Surya Hydraulics Private Limited is a manufacturing firm and sometime said that it is private limited company registered under the Companies Act and as such misleading this Hon''ble Court. No document of incorporation as alleged in para 32 were annexed for showing that M/s. Surya Hydraulics Private Limited was ever incorporated/registered as a Private Limited Company. The applicant is the Director of Surya Hydraulics Private Limited and his wife Smt. Sunita Singh as Proprietor of Surya Hydraulics Private Limited sold Motor Pumps in the name of Vikram Pump and thereafter changed name of the firm Surya Hydraulics Private Limited and now they are running the said business in the name of SMS Hydrotech, which shows that the applicant/accused are running their business of selling pumps in such a manner and style which is nothing, but an offence under Section 420 and 406 IPC.
5.15 The O.P. No. 2 has no concern with Vikram Pump Private Limited (VPPL) in the present controversy rather he is aggrieved by the ill will, cheating, forgery, conspiracy etc. of the applicant and his wife who are the Director and Proprietor of M/s. Surya Hydraulics Pvt. Ltd.
5.16 Various annexures filed by the applicant make it clear that there is no address at all in the said certificate (Annexure 12) and other documents (annexure Nos. 9, 10 and 11) also appear to be false and forged documents prepared for the purpose of the case and annexed only to mislead this Hon''ble Court. In these circumstances the applicant and his wife have committed offence under Section 420 , 406 IPC and the present criminal application is liable to be rejected with costs.
5.17 The applicant by means of alleged letter dated 30.3.2009 shows that he closed down his firm M/s. Surya Hydraulics Private Limited but the controversy between the applicant/accused and the O.P. No. 2/complainant relates to period between 1.4.2007 to 1.11.2007.
5.18 In the facts of the case, offence under Section 406 and 420 IPC is fully made out against the applicant. Since the O.P. No. 2 was returning the burnt goods/pumps to the applicant as the Director of M/s. Surya Hydraulics Private Limited by means of builty and the valuation of goods/pumps which have been returned w.e.f. 1.4.2007 to 30.3.2008 have been shown in the complaint.
5.19 The applicant supplied motor pumps to O.P. No. 2 who returned the burnt water pumps to the applicant and his wife being the Director and Proprietor of M/s. Surya Hydraulics Pvt. Ltd. respectively. But neither amount was returned back to the O.P. No. 2 by the applicant in lieu of the returned pumps nor proper pumps were supplied/return back by applicant in lieu of such returned and burnt pumps by the complainant.
6. In reply to the above arguments learned counsel for applicant reiterated his earlier arguments. He also contended that complaint is barred by limitation as stated in paragraph No. 7 of rejoinder-affidavit.
7. The arguments about complaint being time barred, are controverted and refuted by the learned counsel for opposite parties.
8. Following questions arise before the Court for proper disposal of this case:
(1) Whether complaint is barred by limitation as alleged in paragraph No. 7 of the rejoinder-affidavit?
(2) Whether complaint is bad due to its inherent errors as claimed by the applicant?
(3) Whether no offence is made out against the applicant as claimed by him?
9. So far as issue No. 1 is concerned, this issue has not been agitated at the time of filing of the application but is raised first time in paragraph No. 7 of the rejoinder-affidavit, as such this issue should not be permitted to be raised but being a legal issue, in the interest of justice, same is being considered here.
10. The applicant urged in this regard that allegedly the dispute relates to period 30.6.2006 to 1.11.2007, while complaint was filed on 8.4.2011. No offence against the applicant is made out under Section 420 I.P.C. and for the sake of arguments, if any offence is made out that is only under Section 406 I.P.C., which is punishable by imprisonment of three years or fine or both, since the learned Lower Court has taken cognizance of the alleged offence after the period of three years, therefore, it is barred by time.
11. Controverting the above argument, it is urged on behalf of opposite parties that above argument of applicant has no force, because he was summoned under Sections 406 and 420 I.P.C. Offence under Section 420 I.P.C. is punishable by imprisonment of seven years or fine or by both. Therefore limitation of three years is not applicable in the case in hand.
12. I find substance in the arguments raised on behalf of opposite parties, because applicant was summoned under Sections 406 and 420 I.P.C. Offence under Section 420 I.P.C. is punishable by imprisonment of seven years and fine.
13. Period of limitation is provided in Section 468 of Cr.P.C., which reads as under:
"Bar to taking cognizance after lapse of the period of limitation.
468. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."
14. Sub-Section (3) of Section 468 Cr.P.C. provides that the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. The applicant was summoned under Sections 406 and 420 I.P.C. Offence under Section 420 I.P.C. is punishable with imprisonment of seven years and fine, for which no period of limitation is provided in Section 468 Cr.P.C. Therefore, cognizance taken on complaint filed by the O.P. No. 2 is not barred by limitation, in the light of aforesaid provisions of sub-Section (3) of Section 468 Cr.P.C.
15. Accordingly, question No. (1) is answered in negative i.e. against the applicant.
16. Now I will deal with Question No. 2 which relates to the inherent errors in the complaint.
17. Learned counsel for applicant invited my attention towards various defects contained in the complaint, O.P. No. 2 also admits in various paragraphs which are as follows:
17.1 According to learned counsel for applicant there are so many errors in the complaint for example M/s. Surya Hydrolycs (P) Ltd. is neither arrayed as party in this application nor made accused in the complaint. Opposite party No. 2 told M/s. Surya Hydrolycs (P) Ltd. as a firm but stated it in his complaint as Pvt. Ltd. Applicant was stated Director of the same and his wife Smt. Sunita Singh was stated as Proprietor of the above company, which is logically not possible and permissible. No value of goods allegedly returned is shown in the Challans, Bilties, Legal Notice etc. This is first time shown in the complaint itself, there is also errors in various builty numbers and their respective Challans. Two builties dated 1.2.2008 and 26.2.2008 also find place in paragraph No. 3 of the complaint which are beyond the business period i.e. from 30.6.2006 to 1.11.2007 as told by the complainant in the complaint. Challan No. 437, claimed to be sent to the applicant has been sent to Surya Service Center, Varanasi and so many other clerical and other material errors are found in the complaint.
17.2 The above referred errors are not only evident from the perusal of complaint and documents annexed with it but are also corroborated from averments made in the counter-affidavit.
17.3 In paragraph No. 28 of his counter-affidavit, O.P. No. 2 has stated that applicant some time said that M/s. Surya Hydraulics (P) Ltd. is a manufacturing firm and some time said that it is a Private Ltd. company registered under the Companies Act. While it is stated in paragraph No. 8 of the counter-affidavit that in fact Surya Hydraulics (P) Ltd. is neither company nor a firm, in fact it is a factory manufacturing Submersible Pumps, Mono Block Pumps, Selvel Pumps etc. which are being sold by the applicant to the proprietor of firms, but no such type of explanation is given in the complaint itself.
17.4 In his counter-affidavit, O.P. No. 2 has stated that complaint is limited only regarding some goods and not all mentioned in paragraph No. 3 of the complaint.
17.5 He also admitted that in paragraph 4, second line of the complaint there is some misprint in amount which will be Rs. 8,32,086/- and not Rs. 83206/-. He has also admitted that the amount of Rs. 2,59,270/- mentioned only for issuing credit notes regarding some goods since credit notes for rest of the goods were already received. Challan No. 417 is correct and not Challan No. 437.
17.6 Period of transaction as shown in the complaint is 30.6.2006 to 1.11.2007, whereas one of Challan is of the year 2008.
18. I have given my careful consideration towards above errors and found that those errors are inherent in the complaint and as such complaint is bad due to above referred inherent errors, accordingly Question No. 2 is answered in affirmative i.e. in favour of applicant.
19. Now determination of last Question i.e. Question No. 3 which is formulated as to Whether in the facts and circumstances of the case no offence is made out against the applicant?
20. In paragraph No. 6, 7 and 8 of the complaint, O.P. No. 2 set up case for "Criminal Breach of Trust" and ''Cheating'', which reads as follows:
21. The O.P. No. 2/complainant in his statement recorded under Section 200 Cr.P.C. stated as under:
22. The witnesses Kashi Nath, PW-2 who is Plumber and doing job of fitting pumps etc. on the order of O.P. No. 2 - Balak Kumar. He has stated in his statement recorded under Section 202 Cr.P.C. as follows:
23. Other witness Rajnath Prasad, who is a servant of the complaint, working with him for more than 10 years, stated in his statement as follows:
24. Prior to proceed further it will be appropriate to take note of relevant provisions and various decisions relied upon by learned counsel for the applicant.
25. Offence of "Criminal Breach of Trust" is defined in Section 405 I.P.C. and offence of ''Cheating'' is defined in Section 415 I.P.C., which read as follows:
"Criminal breach of trust
"405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust"."
"Cheating.
"415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
26. In State of Gujrat v. Jaswantlal Nathallal (Supra) the Court held as under:
"8. .......... A mere transaction of sale cannot amount to an entrustment. It is true that the Government had sold the cement in question to BSS solely for the purpose of being used in connection with the construction work referred to earlier. But that circumstance does not make the transaction in question anything other than a sale. After delivery of the cement, the Government had neither any right nor dominion over it. If the purchaser or his representative had failed to comply with the requirements of any law relating to cement control, he should have been prosecuted for the same. But we are unable to hold that there was any breach of trust."
27. In Madhavrao Jiwajirao Schindia and others (Supra), the Court held as under:
"6. We have considered the relevant documents including the Trust deed as also the correspondence following the creation of the tenancy. We have also kept in view the submissions advanced on behalf of the parties by their respective counsel. We have further taken into consideration the natural relationship between the settler and the son and his wife and the fall out.
7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
8. Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals. Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued."
28. In Central Bureau of Investigation, SPE, SIU (X), New Delhi (Supra), the Court held as under:
"29. In the facts of the case, it appears to us that there is enough justification for the High Court to hold that the case was basically a matter of civil dispute. The Banks had already filed suits for recovery of the dues of the Banks on account of credit facility and the said suits have been compromised on receiving the payments from the concerned companies. Even if an offence of cheating is prima facie constituted, such offence is a compound-able offence and compromise decrees passed in the suits instituted by the Banks, for all intents and purposes, amount to compounding of the offence of cheating. It is also to be noted that long time has elapsed since the complaint was filed in 1987. It may also be indicated that although such FIRs were filed in 1987 and 1989, the Banks have not chosen to institute any case against the alleged erring officials despite allegations made against them in the FIRs. Considering that the investigations has not been completed till 1991 even though there was no impediment to complete the investigations and further investigations are still pending and also considering the fact that the claims of the Banks have been satisfied and the suits instituted by the Banks have been compromised on receiving payments, we do not think that the said complaints will not be expedient. In the special facts of the case, it appears to us that the decision of the High Court in quashing the complaints does not warrant any interference under Article 136 of the Constitution. We, therefore, dismiss these appeals."
29. In Hridaya Ranjan Prasad Verma and others (Supra), the Court held as under:
"16. 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.
17. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469 , 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana and others v. Bhajan Lal and others (Supra) as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in complaint. All that the respondent No. 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent No. 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the Court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same."
30. In Alpic Finance Ltd. (Supra), the Court held as under:
"10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that respondents committed the offence under Section 420 I.P.C. and the case of the appellant is that respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It must also be shown that thee existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any willful misrepresentation. Even according to the appellant, parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest may entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.
11. Moreover, the appellant has no case that the respondents obtained the articles by any fraudulent inducement or by willful misrepresentation. We are told that respondents, though committed default in paying some installments, have paid substantial amount towards the consideration.
12. Having regard to the facts and circumstances, it is difficult to discern an element of deception in the whole transaction, whereas it is palpably evident that the appellant had an oblique motive of causing harassment to the respondents by seizing the entire articles through magisterial proceedings. We are of the view that the learned judge was perfectly justified in quashing the proceedings and we are disinclined to interfere in such matters."
31. In the case of S.W. Palanitkar and others (supra), the Court has discussed ingredients of "criminal breach of trust" and ''cheating'', in paragraphs No. 10 and 11 of the judgment which are as follows:
"10. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property (ii) that persons entrusted (a) dishonestly misappropriating or converting that property to his own use: or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law proscribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust.
11. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
32. In the case of S.W. Palanitkar and others (supra), the Court has also held as follows:
"23. Looking to the complaint and the grievances made by the complainant therein and having regard to the agreement, it is clear that the dispute and grievances arise out of the said agreement. Clause 29 of the agreement provides for reference to arbitration in case of disputes or controversy between the parties and the said clause is wide enough to cover almost all sorts of disputes arising out of the agreement. As a matter of fact, it is also brought to our notice that the complaint issued a notice dated 3.10.1997 to the appellants involving this arbitration clause claiming Rs. 15 lacs. It is thereafter the present complaint was filed. From the alleged breach of the agreement in relation to commercial transaction, it is open to the respondent No. 2 to proceed against the appellants for his redressal for recovery of money by way of damages for the loss caused, if any. Merely because there is an arbitration clause in the agreement, that cannot prevent criminal prosecution against the accused if an act constituting a criminal offence is made out even prima facie.
24. Many a times, complaints are filed under Section 200 Cr.P.C. by the parties with an oblique motive or for collateral purposes to harass, to wreck vengeance to pressurize the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching Civil Courts with a view to realize money at the earliest, it is also to be kept in mid that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out. May be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but no to proceed against the accused in a criminal prosecution. Hence before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Section 200-203 of Cr.P.C. keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner."
33. In the case of Uma Shankar Gopalika (supra), Hon''ble Apex Court while considering the question as to whether on the fact disclosed in the writ petition or complaint, criminal offence whatsoever is made out much less Sections 420 /120B I.P.C., the Court held as follows:
"6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences Under Section 420 /120B of the Indian Penal Code. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000/-, they would pay a sum of Rs. 2,60,000/- to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to claim of Rs. 4,20,000/-. It is well-settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence Under Section 420 of the Indian Penal Code."
34. In Devendra Kumar Singla (supra), the Court in paragraph No. 7 of the judgment discussed necessary ingredients of Section 420 I.P.C. As follows:
"7. In order to appreciate the rival submissions. It would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines "cheating". The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction ''or''. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420 . (See
35. In Anil Mahajan (supra), a three Judge Bench of Hon''ble Apex Court observed in paragraphs No. 8 and 10 of the judgment as under:
"8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs. 3,05,39,086 out of the total amount of Rs. 3,38,62,860 was paid leaving balance of Rs. 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defense of the accused and the stand taken in reply to notice because the complainant''s own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.
9......................
10. We have examined the complaint and it is clear from its substance that present is a simple case of civil disputes between the parties. Requisite averments so as to make out a case of cheating are absolutely absent. The principles laid down in
36. In Neelu Chopra and another (supra), it is held by the Court in paragraph No. 5 as follows:
"5. In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants."
37. In the case of Paramjeet Batra (supra), the Court observed in paragraph No. 7 as follows:
"7. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of Court."
38. In Arun Bhandari (supra), the Court discussed distinction between mere "breach of contract" and offence of ''cheating'' and held as follows:
"16. From the aforesaid decision it is quite clear that this Court recorded a finding that there was no averment in the complaint that intention to deceive on the part of the accused was absent right from the beginning of the negotiation of the transaction as the said allegation had neither been expressly made nor indirectly suggested in the complaint. This Court took note of the fact that only non-disclosure was that one of their brothers had filed a partition suit which was pending and the allegation that such a disclosure was not made intentionally to deceive the complainant was absent. It is worthy to note that this Court referred to certain averments in the complaint petition and scrutinized the allegations and recorded the aforesaid finding. The present case, as we perceive, stands on a different factual matrix altogether. The learned Sessions Judge has returned a finding that there was intention to deceive from the very beginning, namely, at the time of negotiation but the High Court has dislodged the same on the foundation that the Respondent No. 2 was merely present and there was no privity of contract between the complainant and her. We will advert to the said factual analysis at a later stage after discussing the other authorities which have been placed reliance upon by the learned senior counsel for the Respondents.
20. In
"7. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in
29. It is worth noting that it was observed therein that one of the paramount duties of the superior Court is to see that person who is absolutely innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint."
39. In the case of G. Sagar Suri and another (supra), the Court held as follows:
"14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. In the instant criminal case without regard to their role or participation in the alleged offences with a sole purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406 /420 , I.P.C. and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to DC quashed, which we do."
40. In M/s. Rohit Stationery Centre (P) Ltd. and others v. State of U.P. and another, Application under Section 482 No. 4131 of 2004, decided on 23.12.2014, this Court while dealing with the matter of withholding of payment by the applicant (M/s. Rohit Stationery Centre (P) Ltd.) of the respondent, held as follows:
"Reverting to the facts of the case, the Court finds that upon reading the allegations made in the criminal complaint and the statement of the complainant and of his witnesses, it transpires that as per business agreement, "Rotomac Pens" were supplied by O.P. No. 2 to the applicants, depending upon the orders placed before the latter, on credit and payments cleared in due course. It appears that at a subsequent stage, accumulated payments of Rs. 87,784,08 were withheld by applicant, as in February 2002 by O.P. No. 2, by the applicants, despite repeated demands. The alleged overt act is described in paragraphs - 4, 5, 6 and 7 of the criminal complaint. To constitute an offence under Section 406 IPC there has to be an entrustment of property to a person, who must have some dominion/control over the same and that such person should misappropriate or convert that property to his own use. On the allegations made in the criminal complaint and the statement of the complainant and the witnesses, the Court finds that it was neither a case of any entrustment nor of any dominion of a property having been passed on the applicants, thus the basic ingredient, to constitute an offence under Section 406 IPC was lacking. It was a case of mere non-payment against goods supplied, which ipso facto would not constitute an offence under Sections 406 IPC Remedy, if any, for O.P. No. 2 lay elsewhere.
The essential ingredient to constitute cheating was fraudulent or dishonest inducement, so much so that the other person is induced to deliver a property or omits to do anything, which he would not do or omit, if he were not so dishonest. There is no fraudulent or dishonest intention alleged by O.P. No. 2 qua the applicants that they had indulged into a commercial transactions with the applicants on account of any fraud or dishonest inducement having been played by the applicants on O.P. No. 2. In the absence of any averment of fraudulent or dishonest inducement having been practiced by the applicants on O.P. No. 2, it cannot be said that on the allegations made in the criminal complaint, a prima facie commission of an offence under Section 420 IPC was established. Once no case for commission of offences under Sections406 and 420 IPC is made out, an offence under Section 120B IPC also looses its sheen. A mere civil dispute has been given a colour of criminality, which cannot be permitted.
In view of aforesaid discussion, the Court is satisfied that prima facie no offence is made out under Sections 406 and 420 IPC, on the contrary, the proceedings were mere abuse of the process of the Court, which is liable to be quashed.
The application succeeds and is allowed........."
41. O.P. No. 2-complainant has taken stand, that as per discussion with applicant, and according to his instructions he was returning the defective and unusable pumps supplied to him by the applicant. Between 30.6.2006 to 1.11.2007, he has sent various items, for which the applicant issued Credit Notes amounting to Rs. 8,32,086/-, as per details given in paragraph No. 2 of the complaint. However, in respect of goods returned back to the applicant, mentioned in paragraph No. 3 of the complaint, neither return of those goods were acknowledged nor Credit Notes of Rs. 2,59,000/- were issued against them. As such, Rs. 8,32,086/- of O.P. No. 2 is due against the applicant, which was neither paid nor articles worth to that amount were sent to O.P. No. 2, therefore, applicant is guilty of ''criminal breach of trust'' punishable under Section 406 I.P.C. And ''cheating'' punishable under Section 420 I.P.C.
42. Controverting above facts, the applicant stated in paragraph No. 36 of his affidavit as follows:
"36. That from above it is clear that different product had been manufactured at different time. There is no discrepancy in as much as business is being done since 1990. Under the facts and circumstances no offence is made out and the complaint is liable to be quashed in as much as on the complaint part of goods which had been returned by complainant were acknowledged by accused but goods sent under four challan as mentioned in paragraph No. 3, 4 and 5 are not acknowledged and credit note is not given accordingly. In this respect it is submitted that it is purely business transaction of complainant who failed to avert and state the name of person to whom delivery was made or who has received. The alleged article is having same valuation as disclosed in the complaint. There is no record filed by complainant to indicate valuation of goods. In fact on account of close of business transaction the complainant has initiated criminal action as counterblast."
43. It is further case of O.P. No. 2 that he came to know that applicant was having mala fide intention from the very beginning and he was in the habit of victimizing persons by cheating them on the pretext of false allurements. These are general and vague allegations, because, necessary particulars of above allegations are not given in the complaint in addition to it above facts are neither proved by O.P. No. 2 in his statement under Section 200 Cr.P.C. and nor by his witnesses in their statements under Section 202 Cr.P.C. It is also not clear that when, how and from whom, the complainant/O.P. No. 2 came to know about above facts and what are the details of persons who were victimized by cheating of applicant. Therefore, above facts do not forward the case of O.P. No. 2 against applicant for "criminal breach of trust" and ''cheating''.
44. According to O.P. No. 2/complainant it is evident from the facts that accused persons were earlier selling their Pumps in the name of Vikram Pump, subsequently they have changed the name of their firm as Surya Hydraulics (P) Ltd. and now they are selling their Pumps in the name and style of SMS. In this regard, applicant stated in paragraph No. 33 of his affidavit as follows:
"33. That allegations in paragraph No. 7 of the complaint are misconceived. It is submitted that complainant did not disclosed in what manner and what is the basis of allegations. During dealing period with complainant, there is no such change. Prior or subsequent change in name of company or in Brand Name is not material. The Brand Name of M/s. Vikram Pump had as mentioned in its registration is "VPPL" i.e. short form of Company - M/s. Vikram Pump Pvt. Ltd. Brand name are given for commercial purpose which are registered."
45. This is also case of O.P. No. 2/com-plainant that accused persons got back goods worth lacks of rupees by cheating on the basis of false assurances, they have neither supplied goods in exchange of returned goods nor have made payment of those, as such, applicant committed offence of ''cheating'' and "criminal breach of trust". In this respect the applicant has replied in paragraph No. 30 of his affidavit as follows:
"30. That it is not the case where no goods against the payment were given or supplied. It is the case of return of defective goods. It is clear that complainant in order to put pressure because his distributorship was terminated on 3.3.2008."
46. Surprisingly, the stand taken by the above witnesses Kashi Nath and Raj Nath Prasad in their statements under Section 202 Cr.P.C. about coming of the applicant at shop of O.P. No. 2 in 2007 and saying to Balak Kumar (O.P. No. 2) that he should send all defective goods to applicant and in exchange applicant will send proper goods to him or return money of them and O.P. No. 2 had returned all defective and other pumps to the applicant. This fact has neither found place in the legal notice nor in complaint and also nor in the statement under Section 200 Cr.P.C. They are proving true, the famous idiom "Muddai Sust Gawah Chust" (Plaintiff Passive - Witness Active) by their above conduct and evidence. It may also be noted here that among the above witnesses Kashi Nath, is plumber working in the shop of complainant for more than ten years and the other witness Raj Nath Prasad, is a servant of the complainant for the last about ten years, as such they cannot be treated to be independent witnesses. In these circumstances the evidence of above witnesses regarding the assurance given by applicant to O.P. No. 2, appears an afterthought, which cant be relied. Otherwise also, above assurance given by the applicant are not indicative that he gave those assurances with mala fide intention to not fulfill them at the time of giving the above assurance.
47. It is stated in paragraph No. 36 of the counter-affidavit that different products had been manufactured at different time and there is no discrepancy in those, as much as business is being done since 1990. This, paragraph of the affidavit has been replied by paragraph No. 32 of counter-affidavit, wherein contents of paragraph No. 36 of affidavit are being told wrong and baseless, but fact of business being done from 1990 is not denied, specifically. Otherwise also, business period of 30.6.2006 to 1.11.2007, appears a picked and chosen period instead of correct and natural. In paragraph 3 of the complainant also alleged bilties dated 1.12.2008 and 26.2.2008 are referred which are beyond the last date i.e. 1.11.2007 of the above referred business period, mentioned in the complaint. It suggests that there was long standing business relationship between applicant and O.P. No. 2, even before from 2006 and period of business 30.6.2006 to 1.11.2007, has been shown in the complaint, with some ulterior motive.
48. It also appears that earlier there was no discrepancy or dispute in the business between the parties. The dispute has started, first time in respect of the goods returned to applicant, mentioned in paragraph No. 2 of the complaint, for which Credit Notes were issued, but amount of credit notes were allegedly not adjusted and about some defective goods which were allegedly sent to the applicant, were neither acknowledged nor credit notes etc. were issued against them nor they were replaced.
49. Here it may be kept in mind that above transactions of return of goods do not come under the transaction for which money has been taken, but, goods were not supplied, rather, it is a case of defective and unusable goods and it is not established on the record that payment of those goods when and how was made.
50. From the above referred evidence and material in respect of criminality aspect of the above transactions, it is clear that initially about returning back the defective/unused goods there was no complaint about cheating or criminal breach of trust.
51. No terms and conditions in respect to business being run between applicant and O.P. No. 2 have been produced by O.P. No. 2 and no proper statement of accounts has been filed by O.P. No. 2 from which allegations made in paragraph No. 2 of the complaint and in respect to respective claims of the parties about advance payment of goods to the applicant and vice-versa supply of goods on credit basis and default in payment on the part of O.P. No. 2/complainant, trustworthiness of explanation of applicant given in paragraph No. 16 of affidavit and paragraph No. 8 of rejoinder-affidavit may be checked.
52. Purchase of goods in advance is also not proved, because, no details of advance payment regarding goods supplied by applicant has been given in the legal notice, complaint or in the statements of complainant and witnesses, recorded under Section 200 and 202 Cr.P.C. respectively and no document related to advance payment has been filed before the learned Lower Court alongwith the complaint. Alleged claim of advance payment for goods supplied by the applicant to the complainant/O.P. No. 2 is also falsified from the Credit Note dated 31.3.2007 (Annexure CA-2) which is reproduced hereinbelow:
Credit Note dated 31.3.2007 "We have credited your account for Rs. 43025-00 (Rs. Forty three thousand twenty five only) for following detail
Less: Payment not recvd. in time 1732538-00, 1314918-00 Less C.D. Already given on Rs. 1454669-00 hence C.D. Not allowed.
You are requested to kindly correct your account accordingly."
53. It reveals from the perusal of above credit note dated 31.3.2007 (Annexure CA-2) filed by O.P. No. 2 himself that total turnover in the year ending 31.3.2007 was Rs. 42,86,975.95, cash discount of Rs. 43025.00 @ of 2% on cash payment of Rs. 21,51,236.00 was given and payment of Rs. 17,32,637.95 was not received in time as per details given in the bottom of the credit note. Amount of goods returned is Rs. 4,03,112.00, was also credited. As such subsequent purchase of goods from applicant on the basis of advance payment is falsified. The statement of accused is also falsified that amount of returned goods was not paid to him as adjustment. Thus, adjustment of returned goods also indicate that at the time of making assurance for goods in exchange of returned goods or adjustment of their price, intention to not fulfill that assurance was from the beginning and very inception was not in the mind of applicant which is a necessary ingredient for the offence of ''Cheating''.
54. The transactions between applicant and O.P. No. 2 are business transactions also supported by the fact that in his legal notice (Annexure 2), O.P. No. 2 has himself stated that due to business relations and being a business man, applicant was informed by the legal notice and in paragraph No. 24 of his counter-affidavit O.P. No. 2 has stated that valuation of goods were not shown in the Challans as per business rules and have been shown in the complaint.
55. As stated above, dispute has been started in respect of return of goods against which credit notes were issued, but allegedly no adjustment was made and in respect of goods returned as stated in paragraph No. 3 of the complaint, return of which was not acknowledged and no credit notes were issued by the applicant.
56. Prior to that earlier there was no business dispute between the parties, therefore, in the facts and circumstances of the case, it cannot be said that applicant had dishonest and fraudulent intention from the very beginning as alleged by O.P. No. 2 - complainant.
57. On the basis of material available on record, maximum it is proved that for some returned goods as per paragraph No. 3 of the complaint, but, applicant has not acknowledged return of those goods and not issued credit notes against them and no payment was made against them and no other proper goods were returned to O.P. No. 2.
58. There were series of talk between the parties including alleged sending of letter dated 7.4.2008 by O.P. No. 2 to the applicant, whereby applicant was requested to issue credit notes of Rs. 2,59,274/- in respect to the goods returned. Though for the reasons best known to O.P. No. 2, letter dated 7.4.2008, referred in paragraph No. 5 of the complaint was neither appended with the complaint nor it was produced before this Court.
59. After long lapse of approximately three years after alleged letter dated 7.4.2008, a legal notice dated 18.2.2011 was sent to the applicant and then complaint has been filed on 8.4.2011 i.e. approximately five years after from 30.6.2006, the alleged start of dispute between the parties, without any plausible explanation for such a long delay in filing the complaint.
60. So far as the allegations about subsequent knowledge of applicants conduct is concerned that also is not helping and constituting necessary ingredients of the offences under Section 406 and 420 I.P.C. Same is the position about alleged non adjustment and non payment.
61. In the light of facts and circumstances stated above and law settled by Hon''ble Apex Court in the decisions of Hridaya Ranjan Prasad Verma (supra), Alpic Finance Ltd. (supra), S.W. Palanitkar and others (supra), Uma Shankar Gopalika (supra), Devendra Kumar Singla (supra), Anil Mahajan (supra), Neelu Chopra and another (supra), Paramjeet Batra (supra), Arun Bhandari (supra), G. Sagar Suri and another (supra) and by this Court in M/s. Rohit Stationary Centre (P) Ltd. and others (supra), this Court is of the considered view that complaint does not disclose any criminal offence at all, much less, any offence either under Section 406 I.P.C. or Section 420 I.P.C. and present case is purely a case of civil dispute between the parties, based on various commercial transactions during course of business, for which remedy lies before the Civil Court by filing of appropriate suit, subject to permissibility of limitation for filing the same.
62. In the circumstances, this Court is of further view that by filing of criminal complaint a dispute of purely civil nature is given a cloak of criminality with intention to pressurize the applicant and his wife to bring them to his own terms and to enforce obligations arising out of breach of contract touching commercial transactions instead of approaching Civil Court with a view to realize money at the earliest, as such by allowing continuance of complaint and consequential proceedings relating to it would amount to abuse of process of Court and to prevent the same it is just and expedient in the interest of justice to quash the same by exercising inherent power of this Court under Section 482 Cr.P.C.
63. For the facts and reasons stated above, this application deserves to be allowed.
64. Accordingly, this application under Section 482 Cr.P.C. is allowed and proceedings of complaint case No. 84 of 2010, under Section 406 and 420 I.P.C. pending in the Court of 9th Additional Chief Judicial Magistrate, Varanasi as well as complaint dated 8.4.2011, are hereby quashed.
65. It is clarified here that quashing of Complaint Case No. 84 of 2010, will not bar the O.P. No. 2 from adopting and choosing other appropriate remedies available to him under the law. No order as to costs.
