JUDGMENT : Kailash Prasad Deo, J. Heard learned counsel for the petitioner Mr. Bharat Kumar and counsel for the State Mrs. Sadhna Kumar, Additional Public Prosecutor assisted by learned counsel for Opposite Party no. 2, Mr. Munna Lal Yadav. 2. The present application has been preferred for quashing of entire criminal proceeding including order taking cognizance dated 02.01.2015 passed by learned chief Judicial Magistrate, Koderma in connection with Complaint case No. 698 of 2014 for the offence alleged under sections 323, 420 and 504 of the Indian Penal Code, so far quo the petitioner. Learned counsel for the petitioner has submitted that the impugned order of cognizance and continuation of criminal proceeding is bad in law. Learned counsel for the petitioner has further submitted that on the basis of a complaint petition filed by Yamuna Yadav, Opposite Party No. 2, before the court of learned Chief Judicial Magistrate, Koderma against Baleshwar Yadav (own brother of the complainant) and the Manager of A.T.C Telecom Corporation Limited through authorized signatory Md. Ziauddin Ahmed (petitioner), Sunny Grand, Jagdeo Path More, Bailey Road, Patna-14, stating therein that accused no. 1, Baleshwar Yadav is own brother of the complainant and complainant is by profession a driver, who use to remain out of house and taking benefit of all these, the accused has always tried to cause loss to the complainant. The complainant has further stated that in the year 2008, he met with an accident and entire management of cash was handed over to his younger brother i.e. accused no. 1 (Baleshwar Yadav), who has misappropriated a sum of Rs. 10,00,000/- and also kept four pieces of cheque of the Bank of India, Branch Indarwa. Later on accused no. 1 Baleshwar Yadav has committed fraud by sending a legal notice to the complainant regarding bouncing of cheque of Rs. 45,000/- though the said account of the complainant was closed since 2013. The complainant has further stated that in the year, 2011 in connivance with the other accused persons, the land purchased by the complainant through deed, situated at khata no. 4, plot no. 1481 area- four decimal has been let off on rent to A.T.C. Tower Company for installation of tower and no rent is being paid to the complainant rather the accused persons are demanding Rs. 75,000/- spent in paying illegal gratification. 4, plot no. 1481 area- four decimal has been let off on rent to A.T.C. Tower Company for installation of tower and no rent is being paid to the complainant rather the accused persons are demanding Rs. 75,000/- spent in paying illegal gratification. The complainant has further stated that from perusal of paragraph 6 of the deed, the purchase land belongs to all four brothers having equal shares. The complainant has alleged that he has demanded in writing and also orally his share of rent from A.T.C. company and also requested to settle the dispute with the accused, but accused no. 1 has categorically said to the complainant that for installation of tower, Rs. 75,000/- has been spent on illegal gratification, as such, till Rs. 70,000/- is paid to the accused Baleshwar Yadav, no further talk will be made on these issues. The complainant ultimately wrote all these things on affidavit vide no. 52 dated 03.11.2011 regarding illegal gratification of Rs. 70,000/- taken as bribe by the employees of the company, as accused no. 1 has disclosed the same also in the panchayat, that Rs. 70,000/- has been given to the company. Accused no.1 has also threatened the complainant, that if he will raise all these issues, he will be falsely implicated in a case of damaging the tower. Thus, it is apparent that accused no. 1, Baleshwar Yadav in connivance with accused no. 2 Manager, A.T.C. company are not inclined to pay the rent of land on which aforesaid tower of the company has been installed, which amounts to fraud/cheating committed by accused persons. It is also stated by the complainant that when he met with an accident entire account of expenditure has been handed over to accused no. 1, Baleshwar Yadav. Taking benefit of the same, loan of Rs. 25,000/- (Rs. Twenty Five Thousand) has been taken on the L.I.C. policy of the complainant and Rs. 1,00,000/- (Rs. One Lakh) has been taken as loan from the other relatives on the pretext of treatment of the complainant. When complainant returned from hospital at that time accused no. 1, Baleshwar Yadav, has purchased a second hand truck (10 wheel truck) having registration no. JH12C- 3547 and thus complainant could know about the misappropriation of Rs. 5,00,000/- (Rs. Five Lakh) of the complainant. The accused no. When complainant returned from hospital at that time accused no. 1, Baleshwar Yadav, has purchased a second hand truck (10 wheel truck) having registration no. JH12C- 3547 and thus complainant could know about the misappropriation of Rs. 5,00,000/- (Rs. Five Lakh) of the complainant. The accused no. 1 Baleshwar Yadav, has orally promised him to return, which he has taken as loan but the same has not been returned till date. 3. The complainant has further stated that from his own earning, he has solemnized marriage of his two sisters and also constructed a house by spending Rs. 10,00,000/- (Rs. Ten Lakh). However the accused no. 1, Baleshwar Yadav is not interested in giving share in the aforesaid house rather has forcefully possessed the house. It is also alleged by the complainant that after creating such situation, the accused no. 1 Baleshwar Yadav oftenly abused the complainant in filthy language and also becomes aggressive to assault him. That panchayat has been convened several times but accused no. 1 Baleshwar Yadav is not obeying the decision of panchayat rather on the pretext of such panchayat decision, the accused started quarrelling and initiated a proceeding against the complainant under Section 107 of the CrPC which is pending in the court of Sub Divisional Magistrate. It is alleged that on 29.07.2014 at around 7.30 P.M., the complainant was scuffled in the way and entered into the house along with the complainant, broke the lock of the box of complainant’s wife and stolen Rs. 5,000/- (Rs. Five Thousand) cash, ornaments and some papers worth Rs. 50,000/- (Rs. Fifty Thousand). The complainant went to the police station and apprised the Officer-in-Charge about the occurrence, who directed him to file complaint case in the Court, as such the present complaint petition has been filed. 4. Learned counsel for the petitioner has submitted that from perusal of the complaint petition, it appears that complainant has dispute with his own younger brother Baleshwar Yadav (accused no. 1), which is of civil in nature. The counsel for the petitioner has further submitted that from perusal of the complaint petition, it appears that there is dispute with regard to share of rent in property, which belongs to four brothers of the complainant and the accused no. 1), which is of civil in nature. The counsel for the petitioner has further submitted that from perusal of the complaint petition, it appears that there is dispute with regard to share of rent in property, which belongs to four brothers of the complainant and the accused no. 1, Baleshwar Yadav, for which A.T.C. company, has entered into an agreement, known as Leave and licence agreement dated 01.11.2012 for installation of equipment for 15 years over an area measuring 50 x 60 square feet situated at Mouza Kharkhotta, P.O. Inderwa, P.S. Koderma, District- Koderma, Pin- 825410 on payment of rent commencing from 30.01.2012 at and for the monthly licence fee of Rs. 2500/- inclusive of all rates, levies, taxes outgoings, impositions whatsoever levied by the local authority, government or any other authority, present and/or future and subject to deduction of tax at source as per Income Tax Act/ Rules in force from time to time. The said agreement was executed by Baleshwar Yadav, brother of the complainant who has also sworn an affidavit stating therein that land of khata no. 4, Thana Koderma, bearing Thana no. 313, plot no. 1481 area four decimal and plot no. 1483 area 5 decimal total area 9 decimal belongs to four brothers namely (1) Indradev Yadav (2) Yamuna Yadav (complainant) (3) Bahadur Yadav and (4) Baleshwar Yadav, all sons of late Duli Yadav which is in possession of all the brothers. Learned counsel for the petitioner has further submitted that nothing has been brought on record which shows any connivance of the said company with the brother of complainant nor any specific allegation has been levelled against the petitioner. Learned counsel for petitioner has further submitted that the present quashing application may be allowed by quashing the entire criminal proceeding including the order taking cognizance dated 02.01.2015 passed by learned Chief Judicial Magistrate, Koderma, in connection with Complaint Case No. 698 of 2014 whereby the cognizance of the offence has been taken under Sections 323, 420 and 504 of the Indian Penal Code as the present case is in the teeth of the judgment of the Hon’ble Supreme Court in the case of Indian Oil Corporation versus NEPC India Limited and others reported in (2006) 6 SCC 736 . There is a growing tendency in business circles to convert purely civil dispute into criminal cases. There is a growing tendency in business circles to convert purely civil dispute into criminal cases. This is obviously on account of prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such tendency seen in several family disputes is leading to irretrievable break down of their marriages/families. There is also an impression that if a person somehow be entangled in a criminal prosecution, there is every likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. 5. Learned counsel for the petitioner has also placed reliance upon the judgment of Pepsi Foods Ltd. and Another-versus-Special Judicial Magistrate and Others as reported in (1998) 5 SCC 749 regarding maintainability of the application where the Hon’ble Apex Court has held at para 28 as follows: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” Learned counsel for the petitioner has also relied upon judgment in the case of G. Sagar Suri and another v. State of U.P. and others as reported in AIR 2000 SC 754 , where it has been held at paragraph-8 that: “8. Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. 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 at 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.” 6. Learned counsel for the petitioner has further submitted that petitioner was working in the A.T.C. Company and has left the job in the year, 2012 itself but he has been arrayed as an accused showing as the authorized signatory of A.T.C. Tower Ltd. which is a registered company under Indian Companies Act and have been granted registration by Department of Tele Communication as I.P. category 1 company. That no specific allegation against the petitioner or his personal involvement has been alleged by the complainant. The main business of the company is to install mobile tower and lease out the same to mobile service provider on rent. The petitioner has been made accused in his official capacity without making the company an accused though the allegation of non-payment of rent is against the company and not against the petitioner in his personal capacity. The petitioner has left the company in the year, 2012 but complaint petition has been filed arraying him as an accused on 31.07.2014 without specific allegation against the petitioner. Learned counsel for the petitioner has further submitted that the case is fit to be quashed also in view of judgment of the Hon’ble Supreme Court in Aneeta Hada vs. Godfather Travels and Tours Private Limited as reported in (2012) 5 SCC 661 . 7. Learned counsel for the petitioner has further stated that the company is still paying rent to the signatory of the agreement Baleshwar Yadav, brother of the complainant who has entered into an agreement with the said company. 7. Learned counsel for the petitioner has further stated that the company is still paying rent to the signatory of the agreement Baleshwar Yadav, brother of the complainant who has entered into an agreement with the said company. Baleshwar Yadav has sworn an affidavit dated 03.11.2011, wherein particularly at paragraph- 6, it has been stated that none of his brothers and co-sharers have any objection now or in future. Learned counsel for the petitioner has submitted that from bare reading of the complaint petition as well as solemn affirmation of the complainant, no offence has been alleged against the petitioner or any allegation of inducement by the petitioner, or any allegation of assault against the petitioner has been made in the complaint petition. The entire dispute is between the brothers, which is of civil nature for which complainant can seek his redressal before the competent court of law and as such, the present complaint case is liable to be quashed so far petitioner is concerned, as the continuation of the same is abuse of the process of the law. Learned counsel for the petitioner has also placed reliance upon the judgment of Hon’ble Supreme Court in Nageshwar Prasad Singh @ Sinha versus Narayan Singh & Anr. as reported in (1998) 5 SCC 694 . 8. Learned counsel for the State, Mrs. Sadhna Kumar, Additional Public Prosecutor assisted by learned counsel for the Opposite Party No. 2, Mr. Munna Lal Yadav has submitted that this petitioner has entered into an agreement with brother of complainant and amount of rent is not being paid to the complainant though his brother Baleshwar Yadav is an accused in the present case. No counter-affidavit has been filed by the Opposite Party No. 2 though, it appears from the order dated 13.07.2005 passed by co-ordinate Bench of this Court, notice was issued to the Opposite Party No. 2 under both process and in the meantime further proceeding in connection with Complaint Case No. 698 of 2004 pending in the Court of learned Chief Judicial Magistrate, Koderma so far against the petitioner has been ordered to remain stayed. Subsequently petitioner has filed I.A. No. 8297 of 2018 for extension of stay of further proceeding granted in favour of the petitioner vide order dated 13.07.2015 by co-ordinate Bench of this Court. Subsequently petitioner has filed I.A. No. 8297 of 2018 for extension of stay of further proceeding granted in favour of the petitioner vide order dated 13.07.2015 by co-ordinate Bench of this Court. Opposite Party No. 2 has appeared through vakalatnama on 06.08.2015 but no counter-affidavit has been filed, as such, interim order dated 13.07.2015 has been extended till 18.01.2019 vide order dated 10.01.2019 passed by this Court enabling the Opposite Party No. 2 to file counter-affidavit. But even then, no counter-affidavit has been filed by the Opposite Party No. 2, rather it has been submitted by Munna Lal Yadav, learned counsel for the Opposite Party No. 2, that complainant/pairvikaar is not coming to file such affidavit, as such he has not filed the counter-affidavit. On the basis of the submissions of learned counsel for the State assisted by learned counsel for the Opposite Party No. 2, this case has been heard on merit. 9. This Court has perused the entire materials brought on record, it appears that petitioner Md. Ziauddin Ahmad has not been alleged personally with any overt act in the complaint petition or in the solemn affirmation of the complainant and statement of the complainant witnesses. From perusal of materials, it appears that complainant Yamuna Yadav and accused no. 1 Baleshwar Yadav are own brothers and they have disputes with regard to property and money between them. The company A.T.C. Tower Limited has entered into an agreement with Baleshwar Yadav (accused no. 1) for installation of mobile tower on the joint land of all four brothers including the complainant on rent and the company is paying rent. The complainant has filed the complaint case for redressal of his grievances in the share of rent, apart from his other civil dispute with his own brother but certainly no criminal offence is made out against the present petitioner Mr. Ziauddin Ahmad, who has been arrayed as an accused being the authorized signatory of the company, as nothing has been specifically alleged which makes out a criminal case against the petitioner Md. Ziauddin Ahmad or the A.T.C. company, though the company has not been arrayed as an accused. 10. Under the aforesaid circumstances, this Court is also of the view that issuance of summon against the petitioner in a criminal case is a serious matter. Ziauddin Ahmad or the A.T.C. company, though the company has not been arrayed as an accused. 10. Under the aforesaid circumstances, this Court is also of the view that issuance of summon against the petitioner in a criminal case is a serious matter. The order of Magistrate for summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegation made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home against the accused. It is not that, the Magistrate is a silent spectator at the time of recording preliminary evidence at the time of summoning of the accused. The Learned Judicial Magistrate has to carefully scrutinize the evidence brought on record and may even himself put question to the complainant and his witness to illustrate answer to find out the truthfulness of the allegation or otherwise and then examine if any offence is prima facie committed by all or any of the accused. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into the motion. Criminal law cannot be set into motion as a matter of course. In the present case there is no matter/material to set criminal law into motion so far the petitioner is concerned and as such, in view of the judgments referred above, the present criminal case is also not maintainable, so far the petitioner Md. Ziauddin Ahmed is concerned. 11. Under the aforesaid circumstances, the entire criminal proceeding including order taking cognizance dated 02.01.2015 passed in complaint case no. 698 of 2014 passed by Chief Judicial Magistrate, Koderma, so far against the petitioner Md. Ziauddin Ahmed is concerned is hereby quashed. 12. The application is hereby allowed.