Judgment : 1. Petitioners, who are accused 1 to 4, in case pending trial in C.C.No.762 of 2009 on the file of learned Judicial Magistrate I, Villupuram, seek quash of proceedings therein. 2. Heard Mr. N.R.Elango, learned senior counsel for petitioners and Mr. A.R.L. Sundaresan, learned senior counsel for respondent. 3. The case stems from a private complaint preferred by the respondent. The complaint of the respondent informs of his being a partner of a business concern by name M/s. Akshaya Restaurant engaged in hoteliering and lodging business. It informs of a relationship by marriage with the petitioners and of a lease agreement dated 23.12.2003 with petitioners which stipulated the following terms: that the lease amount is Rs.1,75,000/- per month payable on or before the 10th of every succeeding month after deduction of any TDS if any upto a period of one year; after November 2004, the lease amount will be reviewed; the lease is for a period of 5 years from 01.01.2004; that the lessee shall be responsible for the purchases and payments of electricity charges, salaries, suppliers bills, etc. after 01.01.2004. It informs that at the time of assigning the business to the petitioners, an overdraft cash credit facility of Rs.6 lakhs held with the Union Bank of India was also handed over to the petitioners along with several blank cheques signed by the complainant in good faith towards their maintaining the bank account in a proper manner. It informs that at the request of petitioners and towards their running another business, the complainant availed of a term loan of Rs. 22.5 lakhs and a cash credit facility of Rs.2 lakhs from the bank on 25.08.2005 for purchase of Oven, electrical chimney and other utensils. It specifically is averred that the entire amount of Rs.24.5 lakhs was utilised by the accused for the purchase of the above said articles. The complaint further proceeds to inform that the petitioners ran the business up to 31.10.2006 but failed to pay any rentals from the beginning, that the petitioners effected several borrowings for purchase of provisions from traders to the tune of Rs.18,18,718.05/-and failed to effect payments. It further informs of misuse of the OCC facility and failure to deposit daily proceeds into the bank account. It further informs of misuse of the OCC facility and failure to deposit daily proceeds into the bank account. The final allegation is that upon promise of the third petitioner to set right matters and as required by the bank, a cheque issued by the accused in the name of M/s.Akshaya Restaurant was, despite insufficient balance, honoured on letter issued by the complainant permitting transfer of funds from another account of his, towards doing so. This resulted in a loss of Rs.5.70 lakhs. On such allegations, the accused are informed to have cheated the complainant to the tune of Rs.92,76,988/-. It is informed that the accused absconded from November 2006, that after a long while their whereabouts were traced at Anna Nagar, Chennai, of trust placed in the accused owing to their being relatives, of an earlier complaint preferred with the police authorities and of issue of notice to the accused requiring their presence before the Inspector of Police, District Crime Branch, Villupuram, on 24.08.2008 and of no action having been taking against them owing to their political influence. It is informed that owing to the attitude of the accused, the bank moved an application under the SARFAESI Act, 2002, before the Debts Recovery Tribunal I, Chennai. The offences alleged are under sections 420 and 406 IPC. 4. Given the nature of complaint, this Court readily would accept the submission of learned senior counsel for petitioners that all that the complaint reveals is a business relationship gone awry. It is the specific case of the complainant that pursuant to the lease agreement, the petitioners were permitted to operate the overdraft cash credit facility, that loans availed of for particular purpose of purchasing kitchen equipments indeed were utilised for such purposes and that a sum of Rs.5.7 lakhs was debited from another account of the complainant towards honouring a cheque drawn on the overdraft cash credit account. Clearly, the alleged failure to make payment for supplies had towards the running of the business cannot be informed to be criminal acts and particularly not by the complainant. Clearly, the alleged failure to make payment for supplies had towards the running of the business cannot be informed to be criminal acts and particularly not by the complainant. The stated position along with the fact that regards alleged wrongdoings of the year 2006, the complaint has been preferred in the year 2009 and subsequent to the bank proceeding under the SARFAESI Act, leads us to accept the submission of learned senior counsel for petitioners that the complaint is an attempt by the respondent to overcome difficulties posed by the pendency of action under the SARFAESI Act before the Debts Recovery Tribunal. This Court is unable to accept the submission of learned senior counsel for respondent that wrongdoings in operation of the OCC account and breach of trust by petitioners pursuant to entrustment of the business prima facie make out a case which rightly has been taken cognizance of. 5. Though on merits, this Court has no hesitancy in accepting this quash petition, the further submission of learned senior counsel for respondent that the present petition is the second of its kind, the first having been withdrawn and hence the same is liable to be dismissed in the absence of any change of circumstance, is one which calls for an answer. Placing reliance on the decision of the Apex Court in R.Annapurna v. Ramadugu Anantha Krishna Sastry and others [2002 (10) SCC 401], a case where in upon finding that the subsequent petition for quash was moved on facts that subsisted prior to the date of dismissal of an earlier quash petition, the Apex Court informed that in such circumstances the earlier finding could not be upset by a subsequent order, learned senior counsel submitted that in the present case too no change of circumstances after the date of the withdrawal of the earlier quash petition in Crl.O.P.No.2426 of 2010 was informed and that the grounds raised in the present petition are the same as those in the earlier petition. A decision in Crl.Appln.No.4603 of 2008 of the Bombay High Court was relied on to submit that powers under section 482 Cr.P.C. could not be used to overcome the express bar against review contained in section 362 Cr.P.C. Learned senior counsel also sought to explain the observations of the Apex Court in S.M.S. Pharmaceuticals Ltd. and Neeta Bhalla and another [ 2007 (4) SCC 70 ] to the effect that the High Court was not completely denuded of its power to exercise inherent power for the second time as peculiar to the facts of the particular case. 6. To his credit and in his usual fair manner, learned senior counsel for respondent, has not submitted that any submissions on merits were made at the time of withdrawing the earlier petition. The first quash petition in Crl.O.P.No.2426 of 2010 was withdrawn on 09.04.2012. Though unnecessary, this court in permitting withdrawal reiterated that it was open to the petitioners to raise all contentions by seeking discharge at the appropriate stage. The case in C.C.No.762 of 2009 was posted to 29.08.2012 for framing of charges, the complainant having earlier been examined on 13.05.2010. The case being one attracting the warrant procedure ought to have been proceeded with after framing of charges, if warranted, at which stage the petitioners would have had an opportunity to seek discharge. The proper procedure to have been followed would be to enter upon the question of framing of charges, taking a decision on whether a case for discharge stands made out or not and in the absence of a case for discharge, the examination of the prosecution witnesses. However, by proceeding to examine PW-2 on 06.11.2012 without framing charges, the petitioners have been deprived the opportunity of seeking discharge under section 245 Cr.P.C. In such circumstances, this court considers it appropriate to entertain the second petition. It is to be kept in mind that section 464 Cr.P.C., inter alia permits an Appellate or Revisional Court to quash proceedings in the face of errors of the trial Court in framing of charges if such court was of the view that no valid charge could be preferred in respect of facts proved. It is to be kept in mind that section 464 Cr.P.C., inter alia permits an Appellate or Revisional Court to quash proceedings in the face of errors of the trial Court in framing of charges if such court was of the view that no valid charge could be preferred in respect of facts proved. In the particular circumstances of the present case, where it is apparent that what essentially is a civil dispute is sought to be given criminal colour and by way of a much delayed action, it would be appropriate to quash proceedings. 7. This Criminal Original Petition shall stand allowed and proceedings in C.C.No.762 of 2009 on the file of learned Judicial Magistrate I, Villupuram, shall stand quashed. Consequently, connected miscellaneous petition is closed.