- (1.) By this application under Section 482 Cr.P.C, the petitioner has prayed for quashing the entire criminal proceeding including the order of cognizance dated 22.1.2002 passed in Complaint Case No. 874 of 2002 whereby the Judicial Magistrate, Jamshedpur has taken cognizance for the offence under Section 406 I.P.C against the petitioner.
(2.) Before discussing the case, I would like to quote the impugned order dated 22.1.2002 passed by the Magistrate which is as under: "Lawyer's attendance on behalf of the complainant has been filed. On perusal of the case record, complaint petition, statement of the accused, statement of the witnesses and documents filed by the complainant, I am of the view that a prima facie case is made out under Section 406 against the accused M/s Otto India Private Limited and A. Das Gupta. On filing of requisites by the complainant, O/C is directed to issue summons against the accused persons. Put up on 15.4.03 for issuing summons and appearance of the above- named accused persons."
(3.) A copy of the complaint petition has been filed and annexed as Annexure-1 to the instant application. The case of the complainant is that he is partner of Maxwell Insulations and carrying on business of engineering contractory and suppliers. The accused placed order with the complainant for supply of Thermal Insulations for hot and cold services of pipes. The value of the order was Rs. 23,00,000/- approximately and in terms of the agreement, 90% was payable as progress payment on submission of bill and rest 10% was payable after three months of satisfactory completion of the entire job. The complainant alleged that he has completed the job against the said order and completion certificate was issued to the complainant. After completion of job, the complainant submitted bills against each job, but 10% of the total amount was retained by the accused on the pretext that payment is to be made after satisfactory completion of entire job. The complainant alleged to have requested several times for reimbursement of the amount, but the accused did r ot pay and lastly refused to pay said legitimate claim. According to the complainant, therefore, the accused with the sole intention to induce the former got the materials supplied by him giving false undertaking that 10% of total bill amount shall be paid later on but the same was not paid. On these allegations, the Magistrate has taken cognizance by passing the impugned order quoted hereinabove. Even if the entire allegations made in the complaint are taken to be correct, the same does not constitute an offence under Section 406 I.P.C. From reading of the complaint, it is evidently clear that parties entered into an agreement for the supply of materials on certain terms and conditions. The Magistrate before taking cognizance has not gone into details of the terms and conditions of the agreement nor he applied his mind on the allegation made in the complaint to come to the conclusion as to whether a case is made out under Section 406 I.P.C. In my view, therefore, continuance of criminal proceeding on such allegations is nothing but the abuse of process of law and undue harassment to the petitioner. If there is any breach of the contract of supply of goods, remedy is available in the civil court. Time and again, courts have held that criminal courts can-not be used to put pressure on a party to fulfild the terms of the contract.;