M.M.PUNCHHI, J. - (1.) THIS is a petition under Section 482, Code of Criminal Procedure, seeking quashing of the criminal complaint and the order of charge under Section 406, Indian Penal Code, framed against the petitioner.
(2.) THE complaint proceeds on the following allegations: The complainant-respondent was said to be running a business in cold drinks. He entered into business dealings with the accused-petitioner in March, 1984. The arrangement was that the accused-petitioner would be given 300 wooden crates for the purpose of employing them for the supply of bottled cold drinks. Prior to July 5, 1984 suggestedly some differences took place but on July 5, 1984, it was agreed upon between the parties that the accused-petitioner would return 300 wooden crates and in case of his failure to do so, he would pay Rs. 22,600/- along-with interest at the rate of 2 per cent per mensum after July 30, 1984. It is further stated in the complaint that time and again the accused-petitioner was requested to pay Rs. 22,600/- together with interest and lastly request was made on October 30, 1984, in the presence of the prosecution witnesses, but the accused-petitioner called them bad names, abused them and even gave two stick blows to the complainant while flatly refusing to return the crates or the amount. It is on these allegations that a complaint under Sections 406, 420, 323, 504 and 506 of the Indian penal Code was instituted. The learned Magistrate, after recording the preliminary evidence, summoned the accused persons and then having recorded pre-charge evidence famed charge under Section 406 Indian Penal Code, against the accused-petitioner vide the impugned order dated October 7, 1985 (Annexure P3). The learned Magistrate observed as follows in his impugned order: ".......The complainant has placed on record an agreement deed dated 5.7.1984 (Ex. P2) the execution of which by Chitranjan Mohan accused in favour of Nirmal Singh complainant has been proved and established by the testimony of Nirmal Singh complainant PW1 and Ram Parkash, one of the attesting witnesses of the said agreement PW3 to the hilt, although, even otherwise the execution of which as such, has specifically been admitted by the accused himself inasmuch as, during the course of his cross-examination, Nirmal Singh complainant PW1 replied to the suggestion which was put forward by the Ld. counsel for the accused himself as follows: "It is correct that one pronote was executed on the day when Ex. P-2 was executed". For all intents and purposes, the parties had been securing each other by not only executing the agreement but by exchanging one pronote also. From this stance, it is abundantly clear that it was only a civil liability which was created between the parties. No element of criminality entered into the field. No mens rea was involved. In no case could the crates or the price thereof be said to be entrusted by the complainant in favour of the accused. No plausible reason has been advanced by the learned Magistrate as to how a prima facie case is disclosed against the accused for offence under Section 406, Indian Penal Code. All what is said is: ".........the crates were entrusted to the accused by the complainant verbally, which was followed by the said agreement in writing arrived at in between them which in itself is a specific admission with regard to the entrustment of the crates by the complainant to the accused. Therefore, in view of all that has been discussed above ... ... ... ..." I am of the considered opinion that a prima facie case for an offence punishable under Section 406 I.P.C. is made out. ... ... ... ..."
(3.) THE observations of the learned Magistrate do not appeal to reason. After the execution of the agreement dated July 5, 1984, the accused had the option either to return the crates or the price thereof with interest. In either situation it was only a civil liability. The complaint in these circumstances is nothing but an abuse of the process of the Court. Accordingly, the same is quashed and sequelly the charge. Allowed, accordingly.;