Hari Shankar Prasad, J.
1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings including order dated 9.2.1999 passed in. C/1 Case No. 67/98, whereby and where-under learned ACJM, Seraikella took cognizance against the petitioners under Sections 120-B/406/420/506 of the Indian Penal Code.
2. Facts leading to the filing of the application are that the complainant-opposite party No. 2 filed a complaint petition alleging, inter alia, therein that some time in the month of February, 1991 he was introduced to petitioner No. 1, M.P. Registrar, who was then posted as advisor in TISCO and was holding very influential position and the complainant was also supplying different items there as supplier contractor. Petitioner M.P. Registrar again met the complainant in Beldih Club, Jamshedpur and during the talks when petitioner No. 1 came to know that complainant-opposite party No. 2 was also supplying electronic items used in installation of cable TV Net work then petitioner M.P. Registrar took him a bit away and informed him that he owns a firm M/s Binyl Electronics and though he was not the registered owner of the firm but he operated the same in the name of his family members. He informed the complainant-opposite party about his contact with Mr. Russi Modi, the then Chairman and Managing Director of M/s TISCO and that because of his influential position in TISCO he bagged huge contract of installing cable TV Network at Noamundi and at Sukinda in TISCO colonies. Thereafter petitioner M.P. Registrar requested the complainant to supply electronic items and other materials to M/s. Binyl Electronics and informed him that the items, which were required, to be installed under his contractual obligation with TISCO and at the same time he assured him of all help in the matter with TISCO and also assured the fair dealing and prompt payment by M/s Binyl Electronics/Thereafter petitioner Zubin Registrar also met the complainant-opposite party No. 2 at this Adityapur office with his father (petitioner M.P. Registrar) and gave verbal message and insisted the complainant to submit his quotation for supply of materials to M/s Binyl Electronics with re-assurance of prompt payment and after so much insistence the complainant-opposite party submitted his quotation No. 3A/ENO/833, dated 7.10.1991 and in reply the petitioner M.P. Registrar immediately placed orders with complainant-opposite party No. 2 to supply materials worth Rs. 1,25,230/- vide his order under reference No. MPR/90/91 dated 8.10.1991. A sum of Rs. 32,000/- was also paid in advance by cheque No. 509955 dated 31.10.1991. The complainant-opposite party No. 2 supplied the materials worth Rs. 1,25,230/- vide Chalan Nos. 3A/CPL/010 dated 25.11.1991 and 3A/CPL/012 dated 30.12.1991 and the same were received and acknowledged by the petitioners of prior supplying of the materials as per order. A further order No. MPR/95/91 dated 15.11.1991 was placed with the complainant-opposite party to supply materials worth Rs. 63,990/- with an advance payment of Rs. 48,000/- by cheque No. 0509966. In this way petitioners paid Rs. 80,000/- as advance although materials worth Rs. 2,13,525.49 paise had already been supplied by the complainant-opposite party No. 2. The complainant-opposite party No. 2 submitted bills for payments of the balance dues but the petitioners adopted a daily dally tactics by not paying the balance amount and thereafter a sum of Rs. 50,000/- was paid by cheque No. 302615 dated 25.2.1992. Thereafter further demands were made and repeated reminders were sent to the petitioners but no payment was made and thereafter the complainant-opposite party No. 2 served a legal notice on the petitioners in October, 1994 and accused mediated through common friend to stop legal action by the complainant and paid Rs. 20,000/-. Thereafter demands were made on several occasions and when no payment of balance amount of Rs. 63,525.43 paise was made then complainant again served a legal notice upon the petitioners on 25.4.1997. Thereafter petitioners again paid a sum of Rs. 5000/- and thereafter complainant-opposite party No. 2 contacted petitioners for payment of rests of the amount. Thereafter complainant was called to the residence of the petitioners for talks and when he went there then he was abused by petitioners M.P. Registrar and Zubin Registrar and even he was threatened with dire consequences and thereafter complainant-opposite party No. 2 filed a complaint case as aforesaid and SA of the complainant was recorded and an enquiry under Section 202, Cr PC was made and thereafter cognizance in the aforesaid case was taken.
3. Learned counsel appearing for the petitioners submitted that only one witness has been examined in this case and, therefore, on the basis of only one witness cognizance should not have been taken. It was also pointed out that petitioners supplied articles, as per complaint petition, worth Rs. 1,89,000/- and odd and petitioners have already been paid Rs. 1,55,000/- as per complaint petition, but on the other hand, complainant-opposite party is demanding payment of Rs. 2,13,535.49 paise. It was also pointed out that case is of a civil nature and just to harass the petitioners the present complaint petition has been lodged as against the petitioners. It was also pointed out that there is no entrustment of the articles and entrustment is one of the main ingredients to constitute an offence under Section 406, IPC and mere a transaction of the said material cannot amount to an entrustment. It was also pointed out that non-payment of the outstanding bill cannot make out a case of criminal breach of trust as there was no entrustment of any property and that after delivery of the material on the basis of sale on credit the complainant-opposite party did not have any right nor dominion over the poverty. It is also submitted that from the averment made in the complaint petition, it will be clear that petitioners had no intention to cheat the complainant from very beginning and that being so none of the ingredients of the offence under Section 420, IPC is there. It is also submitted that learned CJM, Seraikella without applying his judicial mind has taken cognizance in the case.
4. On the other hand, a counter affidavit has been filed on behalf of the opposite party No. 2 and from perusal of which it appears that a sum of Rs. 1,30,000/- has already been paid to the complainant-opposite party No. 2 and a sum of Rs. 83, 523.43 paise is still lying due (Rs. 64,412.20 for materials and Rs. 19,111.23 for sales tax), which has not been paid by the petitioners intentionally to cheat opposite party No. 2 and to cause wrongful loss.
5. In course of submission, learned counsel for the petitioners submitted that if a complaint petition is filed with a view to harass and humiliate the petitioners out of personal vendetta and allegation appears to be highly improbable then cognizance should be quashed and continuance of proceeding will be an abuse of the process of Court and in this connection reliance was placed upon 2000 (1) BLJ 710. It is also submitted that if some amount is due, no offence under Sections 406 and 420, IPC will be made out because no criminal liability can be fastened and remedy lies in civil Court through a money suit. In this connection reliance was placed upon 2000 (1) BLJ 245. It was further submitted that from the averment made in the complaint petition it will appear that this is a case purely of civil nature and there is no criminal intent in the transaction made in between the parties. In this connection reliance was placed upon Hindustan Copper Ltd. and Ors. v. State of Bihar and Ors., 2001 (1) Jhr. CR. 178 (Jhr). Reliance was also placed upon Alpic Finance Ltd. v. P. Sadasivan and Anr., 2001 (1) Jhr. C.R. 449 (SC), wherein it has been held that allegation of default in repayment of instalments and dishonour of cheques issued by respondent and fraudulent and dishonest intention existed at the time of commission of offence but no allegation in the complaint showing fraud and dishonest intention on the part of petitioners, hence in whole transaction no element of deception can be discerned and in such a situation cognizance should be quashed.
6. Learned counsel for the petitioners submitted that mere transaction of sale does not amount to an entrustment and after delivery of tyres no basis of sale on credit and the compliance had neither any role nor dominion over the same and of- fence of Section 406, IPC is not made out and in absence of an intention to cheat from the very beginning, offence under Section 420, IPC is not made out and in such a situation cognizance should be quashed. In this connection reliance was placed upon 1995(1) All PLR 405. Learned counsel further submitted that principle decided in the aforesaid case law fits into the case of the complainant and, therefore, cognizance should be quashed.
7. On consideration of entire facts as well as case law cited above, it is clear that intention is main point and if the intention is lacking then no offence under Section 420, IPC is made out. But from perusal of complaint petition it appears that the complainant-opposite party had from the very beginning made out a case that the petitioner M.P. Registrar appeared before him in such away and tried to influence him in such a way that he had to supply materials and further that he was told about the influential position of the petitioner, which he occupies so far other persons are concerned and, therefore, he always induced him to supply the articles but with intention to cheat him and in this connection reliance may be placed upon Gurder Singh v. Union of India and Ors., : 2001CriLJ4733 . In this case the Hon'ble Apex Court came to a finding that even if there be a case appears to be of a civil nature still criminal case can be filed and in the instant case also the case appears to be of a civil nature but still from the facts alleged, it is clear that a criminal case can be launched.
8. On the basis of discussions made above, I am of the view that there is no merit in this application, which is accordingly dismissed.