JUDGMENT 1. - This is a petition under Section 482 Cr.RC. for quashing the order of the Judicial Magistrate No. 2, Jaipur City, Jaipur dated 5.8.1991, by which he took cognizance against the petitioner under Section 406 IPC in the matter of F.I.R. No. 3/1990, Police Station Ashoknagar, Jaipur, in which Final Report was submitted by the Police. 2. Brief facts may be stated as follows : 3. M/s Hind Contractors and Company was a registered firm which filed a suit against Gurdayal Rawat and M/s. Kamal & Company, through Kamal Chand Kasliwal, in the Court of Civil Judge, Jaipur City on 5.7.1967 alleging that one of the partners of the Firm (respondent No. 2) asked Gurdayal Rawat to purchase a second hand car for the firm and advised to keep some money as advance with him. Thereupon respondent No. 2 gave a cheque for Rs.7,000/- in the name of self' drawn on State Bank of Bikaner and Jaipur, Sheoganj Branch in May, 1964 which was dishonoured. Then Shri Rijhwani sent telegraphic transfer instructions to Shivganj Branch on 12.5.1964 and ultimately the amount was deposited in the account of M/s. Kamal and Company on 14.5.1964. It was alleged in the suit that inspite of several requests, car was not supplied nor amount was returned. Shri Rijhwani met Kamal Chand Kasliwal and demanded the money back which he refused to return. This Civil suit was dismissed on 27.11.1972. No appeal was filed. 4. After three years of the dismissal of the suit, non- petitioner No. 2 filed a criminal complaint in the Court of Addl. Munsif and Judicial Magistrate No. 3, Jaipur City, Jaipur on 20.12.1975 against Gurdayal Rawat and the petitioner on the same facts alleging that when he wrote a letter on 2.5.1966 to the petitioner demanding to return the amount of Rs.7,000/-, the petitioner denied having received any amount in May, 1966. It was further alleged that when Cheque was given to Shri Gurdayal Rawat, the entire dealings were entered with him only but during the pendency of the civil suit he came to know of the criminal conspiracy of the accused-persons. Therefore, both of them under a conspiracy, have committed an offence of criminal breach of trust under Section 406/409/34 IPC. This complaint was sent to Police Station Adarshnagar, Jaipur under Section 156 (3) Cr.RC. for investigation. The FIR No. 49/76 was registered. Therefore, both of them under a conspiracy, have committed an offence of criminal breach of trust under Section 406/409/34 IPC. This complaint was sent to Police Station Adarshnagar, Jaipur under Section 156 (3) Cr.RC. for investigation. The FIR No. 49/76 was registered. After detailed investigation the Police found the case purely of civil nature and consequently submitted Final Report. Thereafter, hiding this fact Shri Rijhwani filed another complaint on 9.1.1980 in the Court of Additional Munsif and Judicial Magistrate No. 8, Jaipur City, under Section 406, 408 and 120-B IPC against the petitioner and Shri Gurdayal Rawat on 16.2.1981. Both of them were summoned in the Court. On 14.5.1983 they submitted an application before the learned Magistrate mentioning about the civil suit and of the earlier criminal complaint in which final report was submitted. After the detailed investigation, it was submitted that no offence was made out but the learned Magistrate after hearing the parties came to the finding that the matter was of civil nature and no offence under Section 406, 408 and 120-B IPC was made out. He discharged them by order dated 23.5.1983 under Section 245 of the Code of Criminal Procedure. A revision petition was filed by Shri Rijhwani in the Court of Learned Sessions Judge, Jaipur City, against the order dated 23.5.1983 where he was unsuccessful as the revision petition was dismissed on 30.7.1988 (Criminal Revision No. 39/1988). The learned Sessions Judge in his Judgment Annex. 4 discussed every aspect and was of the view that the case was of civil nature. After the dismissal of this revision petition Shri Rijhwani filed a Criminal Misc. Petition before this Court under Section 482 Cr.RC. which was decided by Hon'ble Mr. Justice Dave on 20.4.1989, who dismissed it but in the order his Lordships made the following observations : "I am unable to accept the contention without there being any positive refusal alleged against the non-petitioners by the petitioners. It is- for the petitioner and in case he finds that it is a case of refusal to pay without any legitimate ground but is a case of conversion of amount to their own use, they should file a proper complaint. The Petition as such is dismissed." 5. It is- for the petitioner and in case he finds that it is a case of refusal to pay without any legitimate ground but is a case of conversion of amount to their own use, they should file a proper complaint. The Petition as such is dismissed." 5. After the above observations were made in petition under Section 482 Cr.RC., Shri Rijhwani sent a notice of demand of the alleged amount to the petitioner on 31.5.1989 and when he did not give reply to the notice, he again filed a criminal complaint for the third time in the Court of Additional Chief Judicial Magistrate No. 5, Jaipur City on 6.10.1989 on the same facts on which the previous complaints had been dismissed. In this third complaint almost 25 years of the alleged entrustment, Shri Rijhwani deliberately suppressed the facts of filing the first complaint dated 20.12.1975 and registration of the regular case by the Police and FIR submitted in 1976. The third complaint was solely based on the observations made by Hon'ble Mr. Justice Dave. It was again forwarded by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure to the Police Station Ashoknagar where FIR No. 306/1989 was registered against the petitioner and investigation was taken up for offence under Sections 406, 408, 409 and 120-B IPC. In this F.I.R. Police again submitted Final Report on 31.12.1989. Then Shri Rijhwani filed a protest petition on 18.8.1990 before the learned Magistrate, who thereupon proceeded under Chapter XV of the Code of Criminal Procedure. On coming to know of filing this complaint, accused-petitioner moved an application before the learned Magistrate, drawing his attention to earlier cases and prayed for giving him an opportunity to hear. The learned Magistrate, after hearing both the parties, took cognizance under Section 406 IPC by order dated 5.8.1991 which is Annex. 7. Thereupon the petitioner decided to knock the doors of this Court under its extra ordinary powers given under Section 482 Cr.P.C. 6. I have heard the learned counsel for the petitioner as well as the learned counsel for Shri Rijhwani and the learned Public Prosecutor. 7. Learned Counsel for the petitioner submitted that after the civil suit v/as dismissed, Shri Rijhwani had no cause of action to come to the criminal Courts as the matter was of civil nature. I have heard the learned counsel for the petitioner as well as the learned counsel for Shri Rijhwani and the learned Public Prosecutor. 7. Learned Counsel for the petitioner submitted that after the civil suit v/as dismissed, Shri Rijhwani had no cause of action to come to the criminal Courts as the matter was of civil nature. He further submitted that after three years of the dismissal of the suit, petitioner filed the first complaint in which the Police submitted Final Report and this fact was suppressed while submitting the subsequent complaint by Shri Rijhwani. He also submitted that the learned Magistrate had already applied his mind to the final report given by the Police in FIR No. 49/1967 on the same facts and he had no powers under the lav; to revoke or recall his earlier order by taking cognizance in the matter because even in criminal cases, Rule as to issue estoppel applies. He further submitted that Shri Rijhwani was never satisfied and was filing the complaints time and again which the,Police was submitting Final Report time and again and the last petition in which the learned Magistrate, took cognizance was barred by the principle of issue of estoppel. He also submitted that when the second complaint filed by Shri Rijhwanhhad also been dismissed by the learned Magistrate on 23.5.1983 after examining the complainant and his witnesses and the revision filed against the order of the learned Magistrate, had also been dismissed by the learned Sessions Judge. The issue as estoppel was definitely applicable to the proceedings. He also submitted that by taking cognizance, the learned Magistrate has reviewed and recalled the earlier order of discharge by another Court of co-ordinate jurisdiction. He also submitted that the complaint on which the learned Magistrate has taken cognizance by the impugned order was also barred by limitation because the petitioner has refused to pay them the alleged amount in May, 1966 Hence, the period has started from May, 1966 and the petition was barred under Section 468 Cr.RC. He also submitted that there was no direct evidence of entrustment of amount to the petitioner and therefore, the Police had time and again submitted final report. He also submitted that there was no direct evidence of entrustment of amount to the petitioner and therefore, the Police had time and again submitted final report. He also submitted that from the third complaint in which statement of witnesses had been recorded under Chapter of the Code of Criminal Procedure, no case under Section 406 IPC is made out against the petitioner. He has submitted that it is a gross misuse of the process of the Court and therefore, the order of taking cognizance should be set-aside. On the other hand, the learned counsel for Shri Rijhwani submitted that Shri Rijhwani was a freedom fighter and was on his death bed being an old man. He lost a sum of Rs. 7,000/- and has been fighting tooth and nail for almost 25 years. Yet without any result, he submitted that this Court has to be circumspect and slow in interfering the discretion used by the learned Magistrate in summoning the petitioner by taking cognizance. He also submitted that the doctrine of issue of estoppel would not apply in this case because no full fledged ever took place with regard to the offence under Section 406 I.PC. and the order of discharge does not amount of acquittal. 8. During the course of argument it was brought to my notice that the parties have compromised out of Court and this fact should be kept in mind while dealing with the matter. The admitted position is that rule as issue of estoppel does apply to the criminal proceedings. In this case it is evident that the respondent No. 2 was unsuccessful in civil suit and after very long time, he submitted the first complaint wherein after detailed investigation the case was found purely of civil nature. Final Report was given. He, hiding this fact filed another complaint on 9.1.1980 in which the petitioner was also given an opportunity by the learned Magistrate to be heard and came to the finding that the matter was of civil nature and thereafter, dismissed the complaint under Section 245 Cr.P.C. It was confirmed by the learned Sessions Judge and thereafter by the High Court in Criminal Misc. Petition No. 322/1989, but Shri Rijhwani after taking the advantage of observations of Hon'ble Dave, J. sent a Notice of Demand of alleged amount to the petitioner on 31.5.1989 and thereafter, filed another complaint for third time alleging the same facts before the learned Magistrate which was again the Police submitted Final Report. Shri Rijhwani was not satisfied with it and submitted the protest petition and though the attention of the learned Magistrate was drawn by the accused petitioner to the earlier litigations. Yet he took cognizance by the impugned order in view of the fact that the compromise has also taken place between the parties and I am told that the amount as well as the original amount has been paid to Shri Rijhwani alongwith reasonable interest and he is satisfied with it. I am of the view that it is a fit case in which the order of cognizance should be set-aside as to keep the proceedings alive, will amount to an abuse of the process of the Court. I am aware that according to Section 320(2) of the Code of Criminal Procedure, criminal breach of trust, under Section 406 IPC, where the value of the property does not exceed two hundred and fifty rupees but in the facts and circumstances of this case when Shri Rijhwani is satisfied with the amount which he has received and the facts and circumstances are that to keep alive this matter will be an abuse of the process of the Court. I deem it fit that this petition should be allowed. 9. Consequently, the petition is allowed and the impugned order of the learned Magistrate dated 5.8.1991 and the criminal proceedings in criminal Case No. 1291/1991 of the Court of Judicial Magistrate No. 2, Jaipur City are quashed.> Petition dismissed. *******