- (1.) THIS is an application for quashing the entire criminal proceeding in connection with C.P. Case No. 494 of 2006 pending in the court of Sri Ramesh Chandra, Judicial Magistrate, Dhanbad including the order dated 11.8.2006 whereby and whereunder he took cognizance of the offence under section 406 of the IPC against the petitioners.
(2.) IT appears that O.P. No. 2 filed a complaint alleging therein that in the year 2000, he took a shop on rent from petitioner no. 1 and 2 and executed an agreement with regard to the same. It is further alleged that at that time he paid Rs. 1, 20,000/ - as advance, with stipulation that petitioner will return the same at the time of termination of tenancy. It is further alleged that on 10.11.2005, the complainant vacated the shop premises and the possession of the same was handed over to petitioner no. 1 and 2. It is further stated that after vacating the shop, complainant requested the petitioners to return the advance money, but they did not return the same taking different plea and assured the complainant that money will be returned in the month of December'2005. It I further alleged that in December'2005 petitioners told the complainant that he should pay Rs. 10,000/ - towards the maintenance of shop and then only advance money will be returned. It is stated that as instructed by the petitioners, the complainant paid Rs. 10,000/ - through cheque, but after receiving the said cheque the petitioners started misbehaving with the complainant and they have said that they will not return the money. Thereafter the complainant sent a legal notice for return of the money but in spite of the same they did not give any heed to the petitioner's request. Hence the present complaint has been filed. It is submitted by the learned counsel for the petitioner that present dispute arose between the parties out of an agreement of tenancy and therefore the same is a civil dispute, which can be adjudicated by the civil court. Hence the order taking cognizance is an abuse of the process of court; therefore, the same cannot be sustained by this Court. It is submitted that the present case has been filed as a counter blast of C.P. Case No. 414 of 2006, filed by the petitioner no. 1 against the O.P. No. 2 under section 138 of the N.I. Act and U/s 420 of the IPC, alleging therein that the cheque issued by O.P. No. 2 has been dishonoured by the bank concerned. Accordingly, it is submitted that the present criminal proceeding has been instituted maliciously with an ulterior motive to put pressure on the petitioners to withdraw the aforesaid complaint petition. It is submitted that on this ground also the present criminal proceeding is liable to be quashed by this Court.
(3.) ON the other hand, learned APP submits that from the perusal of complaint petition, it is clear that the petitioners has taken advance of Rs. 1,20,000/ - with a promise to return the same at the time of termination of tenancy. It is stated in the complaint petition that even the complainant vacated the tenanted premises, the petitioners did not return the said money and therefore an offence of criminal breach of trust is made out against the petitioners. Thus the court below had rightly took cognizance of the offence. It is further submitted that it is well settled that existence of an alternative civil remedy would not be a bar in initiation of criminal proceeding. It is stated in the complaint petition that a lawyer's notice served upon the petitioners for return of advance money as well as cheque on 2.1.2006, and the complaint petition was filed by the petitioners on 18.3.2006 i.e. after receipt of lawyer's notice , therefore, it cannot be said that the present complaint petition has been filed as a counter blast to the said complaint petition. On the other hand it appears that the petitioners filed said complaint in retaliation of lawyer's notice.;