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Judgment
Date : 06-08-2026 Heard the parties.
The present quashing petition has been preferred to quash the entire criminal proceeding of Complaint Case No. 2816(C)/2015 in TR No.527/2015 passed by learned ACJM, Patna including the order of cognizance dated 07.11.2015 for the offence punishable under Sections 406 and 420 of the Indian Penal Code.
Despite repeated calls Opposite Party No. 2, fails to join the present proceedings.
The prosecution case, as speaks through complaint petition, that petition was awarded a Public Works Central Department contract worth Rs.52,76,314/-for the construction of residential buildings for the Director of the I.C.A.R. Research Complex. As the petitioner required funds to complete the project within the stipulated time, he allegedly invited the complainant to invest in the project as a partner, promising him a 50% share of the profits. Pursuant to an agreement dated 04.06.2003 and a Power of Attorney executed in favor of the complainant, the complainant invested Rs.13,16,000/-and undertook construction-related activities, including receiving construction materials on behalf of the petitioner. The complainant further alleged that the petitioner acknowledged receipt of the investment and subsequently assured repayment. After completion of the project and settlement of accounts, the complainant claimed that an amount of Rs.20,39,377/- remained due to him, comprising his investment and share of profits. Although the petitioner allegedly promised on 15.06.2013 to repay the outstanding amount within three years, he failed to do so, leading to the present dispute.
It is submitted by learned counsel appearing for the petitioner that the complaint purely suggest that OP No. 2 invested sum of Rs.13,16,000/- with petitioner and as the profit amount, which as per complainant was Rs.14,46,754/- was not divided in equal ratio, the present criminal complaint was lodged. It is submitted that in view of the allegations none of the ingredients for constituting offence punishable under Sections 406 and 420 of the IPC for which the cognizance was taken against petitioner appears satisfied. It is submitted that it is purely a dispute regarding recovery of money for which money suit is available under the law. Learned counsel also submitted that still matter is pending and till now even charge could not framed by learned trial court, therefore, cognizance order is fit to be quashed/set aside.
While travelling over the argument learned counsel submitted that cognizance order is bad in eyes of law, in view of the legal report of Hon’ble Supreme Court as available through Rikhab Birani and Another Vs. State of Uttar Pradesh and Another, [2025 SCC OnLine SC 823].
It would be apposite to reproduce the paragraph no(s). 19 and 20 of the Rikhab Birani Case (supra) which reads as under:
“19.It is the duty and obligation of the court to exercise a great deal of caution in issuing process, particularly when the matter is essentially of civil nature. 13 The prevalent impression that civil remedies, being time-consuming, do not adequately protect the interests of creditors or lenders should be discouraged and rejected as criminal procedure cannot be used to apply pressure. 14 Failure to do so results in the breakdown of the rule of law and amounts to misuse and abuse of the legal process.
20.In yet another case, again arising from criminal proceedings initiated in the State of Uttar Pradesh this Court was constrained to note recurring cases being encountered wherein parties repeatedly attempted to invoke the jurisdiction of criminal courts by filing vexatious complaints, camouflaging allegations that are ex facie outrageous or are pure civil claims. These attempts must not be entertained and should be dismissed at the threshold. Reference was made to a judgment of this Court in Thermax Limited v. K.M. Johny which held that courts should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegation may constitute both civil and criminal wrongs. Further, there has to be a conscious application of mind on these aspects by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Though the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set criminal proceedings into motion. The Magistrate should carefully scrutinize the evidence on record and may even put questions to the complainant/investigating officer etc. to elicit answers to find out the truth about the allegations. The summoning order has to be passed when the complaint or chargesheet discloses an offence and when there is material that supports and constitutes essential ingredients of the offence. The summoning order should not be passed lightly or as a matter of course.”
In view of aforesaid factual and legal submissions and by taking note of fact as the allegation as available through complaint petition prima-facie failed to invite the legal ingredients for the offence punishable under Sections 406 and 420 of the IPC, accordingly by taking note of legal ratio as available through in Rikhab Birani Case (supra), impugned order of cognizance dated 07.11.2015 with all its consequential proceedings, qua, above named petitioner arising thereof as passed in Complaint Case No. 2816(C)/2015, Tr. No. 527/2015, pending before learned ACJM, Patna is hereby quashed and set aside.
Hence, this application stands allowed.
TCR (Trial Court Records), if any, be returned to the learned Trial Court alongwith the copy of this judgment.