- (1.) G. B. Singh, J. This is a petition under Section 482, Cr. P. C. for quash ing the proceedings against the petitioners in criminal complaint case pending in the Court of Judicial Magistrate, Lucknow.
(2.) M/s. Jintan Clinical Thermometer Company (India) Pvt. Ltd. , Bombay manufactures Clinical Thermometers. R. K. Kothari, petitioner No. 1 is its Chairman and Deepak R. K. Kothari and B. R. Kothari petitioner Nos 2 and 3 are Managing Director and Director, respectively of the said Company. M/s. Joshi Pharma (hereinafter referred to as the Firm) is a partnership Firm and deals in such Thermometers. It carries on its business at Lucknow. The Firm entered into agreement with M/s. Jintan Clinical Thermometer Company (hereinafter referred to as the Company) for supply of Clinical Thermometers somewhere in the year 1983 and deoosited a sum of Rs. 2,500/- with the Company as security money. In pursuance of that agreement the Company supplied Thermometers. Two consignments were, according to the com plainant, sub-standard. The Firm, therefore, returned those consignments wrrh the request to replace the Thermometers. These consignments were worth Rs. 5,706. 96 paise. It appears that the Company neither replaced the Thermometers nor refunded the security deposit. The Firm, therefore, filed ai complaint against the petitioners alleging that they have committed crimina breach of trust punishable under Sections 405, 406 and 409, I. P. C. It appears that the learned Magistrate after recording evidence undjr Sections 200 and 202, Cr. P. C. summoned the accused petitioners. They, therefore, filed the present petition for quashing the criminal proceedings started on the aforesaid complainant alleging that they could not replace the Thermometers due to lay off and the dispute between the parties is of civil nature and they have not committed any offence of criminal breach of trust. It has also been alleged by them that necessary ingredients of the offences under Sections 406 and 409, I. P. C. have not been disclosed in the complaint. It was argued by the learned counsel for the petitioners that the complaint does not disclose any prima facie case, the dispute between the parties is of civil nature and the complaint has been filed to terrorise them without disclosing the necessary ingredients of the offence alleged. The learned counsel for the Firm opposite party No. 1, on the other hand, argued that the facts disclosed in the complaint constitute the offences under Sections 406 and 409, I. P. C. and the proceedings are not liable to be quashed. After having heard the parties counsel, I am of the opinion that the contention of the learned counsel for the petitioners must prevail. It has been held in R. P. Kapur v. State of Punjab, 1960 Cr LJ 1239 (SC), that where the allegations in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, the inherent jurisdiction of the High Court should be exercised to quash the criminal proceedings started on such a complaint. Similarly in Superintendent and Remembrancer of Legal Affairs West Bengal v. Mohan Singh and others, AIR 1975 (SC) 1002. It has been laid down that where the first information report does not make out any case prima facie against the accused and the proceedings are long drawn out, the High Court may quash the proceedings to prevent the abuse of the process of the Court and to secure the ends of justice. In Hari Prasad Chamaria v. Bishun Kumar Surekha and others, 1974 Cr LJ 352 (SC ). Bishun Kumar Surekha intending to start business advanced a large amount to Bishun Kumar Surekha and others respondents having full faith in them for the same. The respondents started business in their own name and refused to render accounts or return money to the appellant. The point involved was whether the respondents could be held criminally liable under Section 420, I. P. C. It was held in this case at page 354 that: "we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420, Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35,000. There is also nothing to indicate that,the respondents induced the appellant to pay them Rs. 35,000 by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time representation was made, the respondents know the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this facts would not be sufficient to fasten criminal liability on the respondents for the offence of cheating. "
(3.) THESE observations show that where the allegations simply disclose a civil liability and do not constitute any offence, the persons complained against cannot be proceeded against and be held criminally liable. In Makhlal Raj v. Emperor, (1926) 27 Cr LJ 949 (Patna), it has been held that where a sum of money is advanced as part of a contract and not by way of trust, a dispute arising out of a breach of the contract is one of a civil nature and no criminal action lies. In view of the observations made in these cases it is clear that if the allegations made in the complaint do not make out a prima facie case and the dispute between the parties arising out of the contract is of civil nature and no criminal liability is disclosed, the criminal proceedings on the basis of such a complaint cannot be allowed to continue otherwise it would be an abuse cf the process of the Court.;