IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.49848 of 2018
Arising Out of PS. Case No.-3495 Year-2015 Thana- PATNA COMPLAINT CASE District-
Patna

Rahul Siddhartha Son of Sri Narendra Kumar Singh, resident of Flat No. 501,
Hari Tower, Buddha Colony, Police Station- Buddha Colony, Patna- 800001
Bihar … … Petitioner
Versus

1. State Of Bihar

2. Neeraj Kumar, Son of Sri Gauri Shankar Sharan Singh, Proprietor- M/s
Wintrust Solutions, Having its Office Situated at Ground Floor, Yasoda
Apartment, West Patel Nagar, Police Station- Shastri Nagar, District- Patna
Bihar.

… … Opposite Party/s

with
CRIMINAL MISCELLANEOUS No. 30534 of 2018
Arising Out of PS. Case No.-3495 Year-2015 Thana- PATNA COMPLAINT CASE District-

Patna

Pratyush Kumar @ Pratyush Kumar Singh son of Sri Satish Kumar Singh,
Resident of ‘Urmila House’, Ground Floor, Behind S.B.I. ATM, near Shymal
Hospital mor, Maurya Path Raja Bazar, P.S.- Shastri Nagar, District Patna, at
present residing at Road No- 1, Sarbodya Nagar, East of St. Karen’s School,
Gola Road, P.S. Rupaspur, District- Patna, Bihar.

… … Petitioner
Versus

1. State Of Bihar

2. Niraj Kumar son of Gauri Sharan Singh, Proprietor M/s Win Trust Solution
Company, Head Quarter, at Ground Floor, Yashoda Apartment, West Patel
Nagar, P.S.- Shastri Nagar, District- Patna.

… … Opposite Party/s

Appearance :

(In CRIMINAL MISCELLANEOUS No. 49848 of 2018)
For the Petitioner/s : Mr.Saket Gupta, Advocate
Mr. Prakash Kumar, Advocate
Mr. Anurag Singh, Advocate
For the Opposite Party/s : Mr.Sri Panchanand Pandit, APP
For O. P. No. 2 Mr. Pushpendra kr. Singh, Advocate
(In CRIMINAL MISCELLANEOUS No. 30534 of 2018)
For the Petitioner/s : Mr. Vikash Kumar Sharma, Advocate
Mr. Atul Chandra, Advocate
For the Opposite Party/s : Mr. Fahimuddin, APP
For O. P. No. 2 Mr. Pushpendra Kr. Singh, Advocate

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD

ORAL JUDGMENT
Date : 28-11-2019
Patna High Court CR. MISC. No.49848 of 2018 dt.28-11-2019
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Heard learned counsel for the petitioners, learned

counsel for the State and learned counsel representing opposite

party no. 2.

In Cr. Misc. No. 49848 of 2018 the petitioner has moved

this Court for quashing of the order taking cognizance dated

17.09.2016 and issuance of summons to the petitioner by learned

A.C.J.M., Patna in Complaint Case No. 3495 ( c) of 2015 for the

offnece under Section 406 of the Indian Penal Code.

In Cr. Misc. No. 30534 of 2018 the petitioner seems to

have challenged the order dated 20.01.2018 passed by learned Ist

Additional Sessions Judge, Patna in revision case giving rise to Cr.

Revision No. 557 of 2016 by which order taking cognizance and

issuance of summons to the petitioner dated 17.09.2016 passed by

A.C.J.M., Patna in Complaint Case No. 3495 (C) of 2015 has

been affirmed.

Facts in brief are identical. The opposite party no. 2

claims himself proprietor of one M/s Win Trust Solution Company

which is a proprietorship firm having its office at Patna. The

Opposite Party No. 2 entered into an agreement with M/s Punj

Lioyd Private Limited for installation of solar plants. It is the case

of the opposite party no. 2 that pursuant to the agreement he

completed the work and claimed a sum of Rs. 16,75,000/- towards
Patna High Court CR. MISC. No.49848 of 2018 dt.28-11-2019
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the work value, the opposite party no. 2 got a sum of Rs. 6 lacs

only from the company and the allegation is that the balance

amount of approximately Rs. 10,75,000/- were not paid to the

opposite party no. 2.

He filed a complaint petition in the court of learned

C.J.M., Patna which was referred to the Police Station under

Section 156 (3) SectionCr.P.C. by the learned C.J.M. and thereafter a first

information report was lodged. The Police investigated the matter

and submitted a final form saying that no material could be found

to proceed against the accused persons and the case was said to be

based on ‘mistake of facts’.

Under these circumstances opposite party no. 2 filed a

protest petition and the said protest petition having been registered

as a complaint case, the opposite party no. 2 and his witnesses

were allowed to depose in course of inquiry under Section 202

Cr.P.C.

It is the contention of learned counsel for the petitioners

in both the cases that on perusal of the complaint petition as well

as the statement on oath and deposition of inquiry witnesses it

would appear that the company M/s Punj Lioyd Pvt. Limited with

whom the opposite party no. 2 had entered into an agreement was

not impleaded as accused. In the complaint petition no averment
Patna High Court CR. MISC. No.49848 of 2018 dt.28-11-2019
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was made that these petitioners were in any way in ultimate

control of the affairs of the said company. It is submitted that the

petitioner in Cr. Misc. No. 49848 of 2018 was at the relevant time

working as Manager of the company and petitioner in Cr. Misc.

No. 30534 of 2018 was also employee of the said company and

was working as Project Manager. Both the petitioners have since

resigned from the company and are now working in different

organization.

It is, therefore, common contention that from a bare

reading of the complaint petition and the statement on oath no case

under Sectionsection 406 IPC is made out against these petitioners.

Learned counsel for the petitioners have submitted that

apart from the fact that no prima facie case is made out against the

petitioners from a bare reading of the complaint petition and

therefore, this case is covered under one of the conditions

stipulated in the case of SectionState of Haryana v. Bhajanlal reported

in (1992) Supp (1) SCC 335. There is one more ground on which

the impugned orders are liable to be set aside. Learned counsel has

relied upon the judgment of SectionM/s Indian Oil Corporation v. M/s

NEPC India Ltd. and Ors. reported in AIR 2006 Supreme

Court 2780. Paragraph ’10’ of the said judgment has been

specifically relied upon.

Patna High Court CR. MISC. No.49848 of 2018 dt.28-11-2019
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On the other hand, learned counsel representing opposite

party no. 2 has opposed these applications. It is his submission

that at this stage when the court below has found a prima facie

case against the petitioners, no interference is required by this

Court. Leaned counsel representing opposite party no. 2 has also

submitted that the opposite party no. 2 has not been paid the entire

amount for which he had rendered the work to the company and

as such the present complaint has been rightly entertained by the

learned court below.

Having heard learned counsel for the parties and on a

careful perusal of the records, this Court finds that in the complaint

petition as also in his statement on solemn affirmation the

complainant has categorically stated that he had filed the case only

when the payments were not made to him for the work done under

the agreement with the company M/s Punj Lioyd. The inquiry

witnesses have also stated the same.

On reading of the materials available on the record, the

only conclusion which may be reached without adding or

subtracting anything out of the records is that the opposite party no. 2

had claimed to have rendered the work under an agreement with

M/s Punj Liyod but according to him, M/s Punj Lioyd has not paid

him the claimed amount for the said work. The case has been brought
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only for that. So far as these two petitioners are concerned, neither

in the complaint petition nor in his deposition on solemn

affirmation the complainant has made any allegation which may

prima facie constitute an offence under Section 406 of the Indian

Penal Code. Section 406 IPC provides for punishment for the

offence committed under Section 405 IPC. Sections 405 and Section406

IPC are, therefore, extracted hereunder for a ready reference:

“405. Criminal breach of trust.–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
wilfully suffers any other person so to do, commits
“criminal breach of trust”.

“406. Punishment for criminal breach of trust.-
Whoever commits criminal breach of trust shall be
punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with
both.”

This Court finds that none of the ingredients of Section

405 IPC would be attracted in the facts of the present case. This

Court would also reproduced paragraph ‘9’ and ’10’ of the

judgment of the Hon’ble Apex Court in the case of M/s Indian Oil

Corportion (supra):

Patna High Court CR. MISC. No.49848 of 2018 dt.28-11-2019
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“9. The principles relating to exercise of
jurisdiction under Section 482 of the Code of Criminal
Procedure to quash complaints and criminal proceedings
have been stated and reiterated by this Court in several
decisions. To mention a few SectionMadhavrao Jiwaji Rao
Scindia v. Sambhajirao Chandrojirao Angre
[1988(1)SCC 692], SectionState of Haryana v. Bhajanlal [1992
Supp (1) SCC 335], SectionRupan Deol Bajaj v. Kanwar Pal
Singh Gill [1995 (6) SCC 194], SectionCentral Bureau of
Investigation v. Duncans Agro Industries Ltd. [1996 (5)
SCC 591], SectionState of Bihar v. Rajendra Agrawalla [1996
(8) SCC 164], SectionRajesh Bajaj v. State NCT of Delhi, [1999
(3) Scc 259], SectionMedchl Chemicals Pharma (P) Ltd. v.
Biological E. Ltd. [2000 (3) SCC 269], SectionHridaya Ranjan
Prasad Verma v. State of Bihar [2000 (4)SCC 168], SectionM.
Krishnan v. Vijay Kumar [2001 (8) SCC 645], and
SectionZandu Phamaceutical Works Ltd. v. Mohd. Sharaful
Haque [2005(1) SCC 122]. The principles, relevant to
our purpose are:

(i) A complaint can be quashed where the
allegations made in the complaint, even if they are 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.

For this purpose, the complaint has to be
examined as a whole, but without examining the merits
of the allegations. Neither a detailed inquiry nor a
meticulous analysis of the material nor an assessment of
the reliability or genuineness of the allegations in the
complaint is warranted while examining prayer for
quashing of a complaint.

(ii) A complaint may also be quashed where
it is a clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated with
mala fides /malice for wreaking vengeance or to cause
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harm, or where the allegations are absurd and inherently
improbable.

(iii) The power to quash shall not, however,
be used to stifle or scuttle a legitimate prosecution. The
power should be used sparingly and with abundant
caution.

(iv) The complaint is not required to
verbatim reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid in the
complaint, merely on the ground that a few ingredients
have not been stated in detail, the proceedings should not
be quashed. Quashing of the complaint is warranted only
where the complaint is so bereft of even the basic facts
which are absolutely necessary for making out the
offence.

(v) A given set of facts may make out : (a)
purely a civil wrong; or (b) purely a criminal offence; or

(c) a civil wrong as also a criminal offence. A
commercial transaction or a contractual dispute, apart
from furnishing a cause of action for seeking remedy in
civil law, may also involve a criminal offence. As the
nature and scope of a civil proceedings are different
from a criminal proceeding, the mere fact that the
complaint relates to 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.

“10. While on this issue, it is necessary to
take notice of a growing tendency in business circles to
convert purely civil disputes into criminal cases. This is
obviously on account of a prevalent impression that civil
law remedies are time consuming and do not adequately
protect the interests of lenders/creditors. Such a tendency
is seen in several family disputes also, leading to
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irretrievable break down of marriages/families. There is
also an impression that if a person could somehow be
entangled in a criminal prosecution, there is a likelihood
of imminent settlement. Any effort to settle civil disputes
and claims, which do not involve any criminal offence,
by applying pressure though criminal prosecution should
be deprecated and discouraged. SectionIn G. Sagar Suri v. State
of UP [2000(2) SCC 636], this Court observed:

“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 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 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.”

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
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.”

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This Court finds that it is an admitted case where the

opposite party no. 2 has proceeded to file a criminal case for

recovery of his money. This would be an abuse of the process of

the court. Therefore, in the opinion of this Court, both in the

interest of justice as well as to prevent the abuse of the process of

the court it becomes necessary to invoke the inherent power of this

Court under Section 482 Cr.P.C. The impugned order taking

cognizance dated 17.09.2016 passed in Complaint Case No. 3495

(C) of 2015 in respect of both the petitioners is hereby quashed.

The revisional order dated 20.01.2018 passed in Cr.

Revision No. 667 of 2016 is also hereby set-aside.

Both the applications are hereby allowed.

(Rajeev Ranjan Prasad, J)
avin/-

AFR/NAFR
CAV DATE
Uploading Date 29.11.2019
Transmission Date