Vivek Sharma vs State of Uttarakhand and Another

Alok Singh, J.—Smt. Indu Sharma, learned Counsel for the Applicant.

Mr. S.S. Adhikari, learned AGA for the State of Uttarakhand.

Mr. C.K. Sharma, learned Counsel for the Respondent No. 2.

Learned Counsel for the Applicant argued that from the perusal of the FIR dispute seems to be of business transaction. She further argued that in the present matter civil dispute of business has been given colour of criminal offence. For recovery of amount due against the business transaction civil suit should have been filed.

Mr. S.S. Adhikari, learned AGA fairly accepted that in the present matter Section 406 IPC is not attracted as it is a pure civil dispute.

Mr. C.K. Sharma, learned Counsel for the Respondent No. 2 argued that accused is a salesman and after selling the goods he fails to give account and sale consideration to the complainant.

Apex Court in Dhariwal Tobacoo Products Limited v. State of Maharastra reported in 2009 (2) SCC 370 in para 10 has relied upon earlier judgment of Apex Court in G. Sagar Suri and Another Vs. State of U.P. and Others, . In which Hon''ble Apex Court has held "jurisdiction u/s 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. The SC has laid certain principles on the basis of which the High Court is to exercise its jurisdiction u/s 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice".

I have carefully perused the First Information Report. As per First Information Report accused failed to render account to the complainant and did not refund sale consideration of the goods sold by him. In my opinion this seems to be civil dispute for which suit for rendition of account and for recovery lies. There is no entrustment of any property. Entrustment of property is sine quo non to attract Section 405 IPC. Hence, prosecution u/s 406 IPC shall be abuse of process of law.

As discussed above this is pure civil dispute between the parties and offence u/s 406 IPC is not made against the Petitioner.

In view of above, petition is allowed. Further proceedings in case crime No. 177 of 2008 P.S. - Kashipur, District - Udham Singh Nagar pursuant to chargesheet dated 14.05.2008 pending in the Court of Additional Chief Judicial Magistrate, Kashipur, District- Udham Singh Nagar is hereby quashed.