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1998 DIGILAW 453 (PAT)

Sanjoy Kumar v. State Of Bihar

1998-07-06

S.K.CHATTOPADHYAYA

body1998
Judgment 1. Heard Mr. Krishna Mohan, learned counsel for the petitioner, Mr. S.M. Manzar Ahsan, learned counsel for the opposite party No. 2 and the learned APP on behalf of the State. 2. In this application, the petitioner has prayed for quashing the entire criminal prosecution launched against him on the complaint filed by the opposite party. 3. The complaint made before the Chief Judicial Magistrate, Bhagalpur reveals that the petitioners and the opposite party, two businessmen deal with Silk materials, entered into a written agreement for supply of some cloth by the opposite party to the petitioner. The petitioner is an exporter and on getting materials, he exports the same. The allegation of the complainant is that on 17.12.1998 the petitioner and one Ram Autar Yadav met the complainant and requesced him to enter into a business contract with the petitioner in T.G. cloth each month. The sample shown by the complainant satisfied the accused and he confirmed the order. Terms and conditions were enumerated in the said contract. Admittedly, this written agreement was entered into on 9.1.1998. However, when on 9.1.1998 the complainant asked for the amount for the order of 6070.45 metres of cloth as advance the accused assured him that the balance cloth may be given and within two days Rs. 1,50,000/- would be paid. The complainant delivered 6070.45 metres T.G. cloth on 9.1.1998 but, the amount was not paid. The complainant came to know that the cloth was sent to Delhi and the accused-petitioner sold that cloth to other persons for some more profit. Ultimately, it is admitted that 5756 metres of cloth were returned to the complainant but, balance cloth measuring 315.45 metres were not returned. The complainant, thus, asked for the price of the balance cloth of 315.45 metres, which was to the tune of Rs. 71,045/-. It is said that the accused wanted to return the agreement and, therefore, the application. 4. On such complaint being filed the Magistrate after examining the complainant and his witnesses took cognizance of the offences under Sections 406/420/426/1208 of the Indian Penal Code and issued notice to the petitioner. 5. From the aforesaid facts, it is clear that there was a written agreement for certain business transaction. The allegation is about breach of agreement. 4. On such complaint being filed the Magistrate after examining the complainant and his witnesses took cognizance of the offences under Sections 406/420/426/1208 of the Indian Penal Code and issued notice to the petitioner. 5. From the aforesaid facts, it is clear that there was a written agreement for certain business transaction. The allegation is about breach of agreement. It is not the allegation that though the complainant sent the said metres of cloth to the petitioner but, not being satisfied with the standard of the cloth, the petitioner did not return the said cloth. It would have been different matter, if, after receiving 6070.45 metres of TG cloth the petitioner would not have returned the same and he sold it out for higher profit and deprived the complainant of its price. The opposite party No. 2 has admitted that out of 6070.45 metres of cloth the petitioner returned 5756 metres cloth to him. However, according to him, remaining cloth measuring 315.45 metres was not returned and, as such, he was entitled for Rs. 4,71,045. From this fact, it is clear that neither the petitioner had any criminal intention from before nor afterwards he cheated the opposite party No. 2 by not returning the said cloth. 6. Under these circumstances, in my view, liability, if, any, arisen by the breach of contract is of civil nature and not criminal. My view finds support from the decision of the Supreme Court in the case of Nageshwar Pd. Singh alias Sinha V/s. Narayan Singh and another, 1998 (5) SCC 694 . 7. The learned Magistrate, it appears, has not applied its judicial mind to the facts and circumstances of the case and has issued process mechanically. 8. In the result, this application is allowed. The order taking cognizance dated, 21.5.1998 as well as the criminal case against the petitioner are hereby quashed.