Created by Fuzzy Cloud

Patna High Court

Arvind Sah and Anr.versusState Of Bihar and Anr

Decided
Disposal
ALLOWED

Holding

The order taking cognizance under Sections 406 and 417 IPC is set aside as the allegations do not amount to criminal breach of trust or cheating and the appropriate remedy is civil.

Summary

Arvind Sah and Anand Sah, senior officers of Arvind Remedies Ltd, filed an application under Section 482 of the CrPC to quash a Judicial Magistrate's order that had taken cognizance of offences under Sections 406 and 417 IPC based on a complaint by M/s K.B.M. Enterprises alleging non‑payment of interest, commission and other dues. The court observed that the dispute arose out of a business transaction and that the complainant had not pursued the appropriate civil remedy. It held that the alleged acts did not satisfy the essential ingredients of criminal breach of trust or cheating and that there was no dishonest intention on the part of the petitioners. Consequently, the magistrate's cognizance was deemed mechanical and unsustainable. The High Court set aside the order and allowed the petition to quash the criminal proceedings.

Issues considered

  • The alleged non‑payment of interest, commission and expenses constitute an offence under Section 406 IPC?
  • The alleged non‑payment constitute an offence under Section 417 IPC?
  • Whether the Judicial Magistrate could validly take cognizance of the complaint in the present facts?
  • Whether the civil remedy is the appropriate forum and the criminal proceeding should be quashed under Section 482 CrPC?

Legislation cited

Subjects

  • criminal breach of trust
  • cheating
  • Section 406 IPC
  • Section 417 IPC
  • Section 482 CrPC
  • civil remedy
  • business dispute
  • quash criminal proceedings

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.15505 of 2016
                 Arising Out of PS. Case No.-1159 Year-2015 Thana- PATNA COMPLAINT CASE District-
                                                          Patna
                 ======================================================
           1.     Arvind Sah , Son of Late Bhabutmalji,
           2.    Anand Sah, Son of Shri Arvind Sah, Both resident of C/o Arbind Remedies
                 Ltd. No. 38, 39 and 40, STD Co. Industrial Estate, Kakkalur, Thiruvallu.

                                                                               ... ... Petitioner/s
                                                     Versus
           1.    State Of Bihar
           2.    M/S K.B.M. Enterprises Pvt. Ltd. Having its registered Office at Rahman
                 Commercial Complex, Computer zone campus Exhibition Road, P.S Gandhi
                 Maidan, Patna through its director Mr. Shyam sundar Maskara, S/o of Late
                 Hira Lal Maskara.

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s   :       Mr. Amrit Abhijat, Adv.
                 For the State          :       Mrs. Veena Rani Prasad, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
                                       ORAL ORDER

7   16-02-2026                   At the outset, learned counsel appearing for the

                   petitioners is permitted to make necessary correction in

                   paragraph no. 1 of the petition with regard to details of the

                   sections in which cognizance of the alleged offences has been

                   taken in course of the day.

                                 2. The instant application has been preferred under

                   Section 482 of the Code of Criminal Procedure (in short

                   ‘Cr.PC’) with a prayer to quash the order dated 28.08.2015

                   passed in complaint case no. 1159( C) of 2015 by the court of

                   learned Judicial Magistrate 1st Class, Patna whereby and
Patna High Court CR. MISC. No.15505 of 2016(7) dt.16-02-2026
                                            2/5




          whereunder cognizance has been taken under Sections 406 &

          417 of the Indian Penal Code (in short ‘IPC’) and the petitioners

          have been summoned for the said offences.

                       3. While referring to the relevant paragraphs of the

          complaint filed by the O.P. No. 2, Mr. Amrit Abhijat, learned

          counsel appearing for the petitioners submits that no offence

          under Sections 406 and 417 of the IPC is made out even prima

          facie as in between the petitioners and O.P. No. 2, there was

          business transaction.

                       4. Learned counsel further submits that the petitioner

          no. 1 was the Managing Director of M/s Arvind Remedies

          Limited (hereinafter referred to as the ‘Company’) and

          petitioner no. 2 was the Vice President of the said Company

          during the relevant period of time and as per the allegation, the

          complainant/O.P. No. 2 was appointed by the petitioners as C&F

          agent of their Company mainly for the purpose of selling

          medicines of their Company and the dispute raised by the O.P.

          No. 2 in his complaint mainly relates to non-payment of interest

          amounting to Rs. 2, 47,166/- accrued on the security deposit of

          Rs. 15,00000/- made by O.P. No. 2, with the Company of the

          petitioners and further relates to non-payment of the

          commission, reimbursable expenses, VAT and telephone
Patna High Court CR. MISC. No.15505 of 2016(7) dt.16-02-2026
                                            3/5




          charges, etc. For these issues raised by the O.P. No. 2, the best

          remedy available to the O.P No. 2 is before the civil court by

          way of civil litigation but the same has not been availed by him

          till date and from the narration of the allegations, one thing is

          quite clear that the petitioners had no dishonest intention from

          the inception of the business transaction between the petitioners

          and O.P. No. 2 as admittedly, considerable part of the interest

          amount had already been paid by the petitioners’ Company to

          the O.P. No. 2 and further, the petitioners were Managing

          Director and Vice President of the Company and even if the

          entire allegations made in the complaint by the O.P. No. 2 are

          accepted even then no offence under Section 417 of the IPC is

          made out and the main ingredients of Section 406 of the IPC are

          also not even prima facie attracted in this matter and the learned

          Judicial Magistrate has taken cognizance of alleged offences in

          mechanical manner without applying judicial mind.

                       5. In support of           the above submissions, learned

          counsel for the petitioners has placed reliance upon the

          following two judgments of the Hon’ble Apex Court:-

                       (i) Criminal Appeal No. 488 of 2013 (GHCL

          Employees Stock Option Trust Vs. India Infoline Ltd.)

                       (ii) Criminal Appeal No. 317 of 2008 (S.K. Alagh Vs.
Patna High Court CR. MISC. No.15505 of 2016(7) dt.16-02-2026
                                            4/5




          State of U.P. and Ors.

                      6. No one appears on behalf of the O.P. No.2.

                      7. Learned APP appearing for the State though

          opposes this application but fairly accepts that there was

          business transaction in between the Company of the petitioners

          and O.P. No.2.

                      8. Heard both the sides and perused the impugned

          order as well as other relevant materials.

                      9. From the averments made in the complaint of the

          O.P. No.2, it is an admitted position that there was a business

          transaction in between the petitioners’ Company and the O.P.

          No.2 during the relevant period of time and in respect of

          security deposit of Rs. 15,00,000/- made by the O.P. No.2 in the

          Company of the petitioners, considerable part of the interest had

          already been paid to the O.P. No.2 which is not under dispute.

          Though, the rest part of the interest was not paid and further,

          commission and other reimbursable expenses were also not

          paid by the petitioners’ Company but initial payment made by

          the Company of the petitioners to the O.P. No.2 does not show

          the dishonest intention on the part of the petitioners’ Company

          from the very beginning of the dispute relating to the petitioners

          and O.P. No.2 and further, non-payment of the alleged amount
          Patna High Court CR. MISC. No.15505 of 2016(7) dt.16-02-2026
                                                      5/5




                    which is said to be due on the part of the petitioners’ Company,

                    the best remedy available to the O.P. No.2 is before Civil Court

                    by way of civil litigation and it appears that the O.P. No. 2 filed

                    the complaint with the sole purpose of settling the dispute with

                    the petitioners’ Company by initiating the criminal prosecution

                    which is not permissible in the eyes of law. As such, it appears

                    that the learned Magistrate has taken cognizance of the alleged

                    offences in mechanical manner without appreciating the

                    aforesaid relevant facts and the same is not sustainable in the

                    eyes of law, hence, the order impugned taking cognizance of the

                    alleged offences and subsequent criminal proceedings having

                    arisen against the petitioners in the light of the impugned order

                    are hereby set aside/quashed and the instant application stands

                    allowed.



                                              (Shailendra Singh, J)
siddharthkr/BKS
-
AFR
U


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.