Vinod Prasad, J.Revision is taken up in the revised list. Sri Kapil Tyagi, learned counsel for the revisionists alongwith Smt. Raj Laxmi Sinha, learned AGA for the State are present. Nobody has appeared for the informant respondent No. 2 Dinesh Kumar although, the name of Sri S.K. Tyagi, Sri Ravish Kumar Singh, Sri J.S.P. Singh and Sri B.K. Singh for him are printed in the cause list.

I therefore have heard Sri Kapil Tyagi, learned counsel for the revisionists and Smt. Raj Laxmi Sinha, learned AGA for the State and have gone through the record of this revision.

Challenge in this revision by both the revisionists, Pawan Kumar and Shailesh, who are real sibling brothers being sons of Keshar Prasad, is to the order of their summoning for offences under Sections 406, 504, 506, 352 IPC, P.S. Hapur Kotwali, District Ghaziabad, dated 25.5.2005, recorded in complaint case No. 330 of 2005, Dinesh Kumar v. Pawan Kumar and others, by Additional Judicial Magistrate, Hapur, Ghaziabad.

Recapitulating background facts due to which this revision has emerged it becomes discernible from the relevant material placed on the record that a complaint was filed by the Dinesh Kumar respondent No. 2 before A.C.J.M., Hapur, on 30.3.2005, as complaint case No. 330 of 2005, Dinesh Kumar v. Pawan Kumar and others, alleging therein that the complainant Dinesh Kumar was a partner of firm Rajendra Kumar, Dinesh Kumar, Ram Kishan market, Hapur, P.S. Hapur Kotwali, District Ghaziabad having business of a commission agent of potatoes and onions. Both the uterine brothers accused revisionists Pawan Kumar and Shailesh Kumar were the owners of M/s. Shailesh Kumar Chhotey Lal, Stock Market, Sarkari Bazar, Chhapra, Bihar and they had approached the complainant on 30.8.99 and had placed an order for supply of potatoes of Rs. two lacs fifty thousand (Rs. 2,50,000/- only). Because of the business acquaintances since before complainant believed the genuineness of the order and supplied the potatoes to the revisionists. From the date of supply till 22.11.2002, for a period of three years, accused respondents paid only Rs. one lac fifty thousand (Rs. 1,50,000/- only) to the complainant as sale price of supplied potatoes and for paying the balance amount they started making false excuses and promises. It is further alleged in paragraph 4 of the complaint that on 8.12.2004 both the accused-respondents came to the firm of the complainant at Hapur Chandi Road and when complainant demanded payment of balance amount accused tossed Rs. Ten thousand only (Rs. 10,000/- only) and threatened and intimidated the complainant that if he will make any further demand or will come to Bihar, he will be done to death. They had also caught hold the complainant by his collar and had tried to throttle him. Hearing the commotion, Rakesh Kumar, Yusuf and other persons had collected at the incident scene and had witnessed of the incident.

Concerning aforesaid crime initially complainant filed an application on 9.12.2004 before the Circle Officer, police, but no action was taken against the culprits and, therefore, on 10.3.2005, complainant had lodged the complaint against the accused-revisionists, which was registered as complaint case No. 330 of 2005, Dinesh Kumar v. Pawan Kumar and others, under Sections 406, 504, 506, 352 IPC.

2. In support of his complaint, complainant respondent No. 2 had filed a copy of the statement of account, a copy of notice dated 26.6.2004, a copy of the application given to the Circle Officer, Hapur. Besides that he has examined himself u/s 200 Cr.P.C. and two of his witnesses Rakesh Kumar and Yusuf, u/s 202 of the Code. Learned trial Magistrate, on the strength aforesaid evidences summoned both the revisionists for aforementioned offences vide impugned summoning order dated 25.5.2005, which order is now under challenge in the instant revision.

3. Sri Kapil Tyagi, learned counsel for the revisionists submitted that in fact a business transaction dispute for realizing balance amount of goods supplied has been malafidely and illegally dragged into the criminal Court and no offence is disclosed from oral and documentary evidences. For making out an offence u/s 406 IPC, presence of dishonest intention since ab initio, prior to entering into the contract is sine qua non. Unless accused possesses an intention to dishonestly misappropriate or convert to his own use any property entrusted to him no offence u/s 406 IPC can be said to be made out. In support of that submission, learned counsel invited the attention of Court on the definition of Criminal Breach of Trust as is enacted u/s 405 IPC. The definition of the aforesaid crime starts with "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property.......". On the strength of the aforesaid ordained statutory enactment, contention of learned counsel is that dishonest intention has to be present prior to entering into the transaction contract which, in the present case, is missing and, therefore, no offence u/s 406 IPC can be said to be made out even prima facie against the accused-revisionists. Sri Tyagi further contended that so far as other allegations regarding catching hold of the complainant by his collar and neck and attempt to throttle him are concerned, they are all embellished and spurious allegations as, on the own showing of the complainant, during the incident accused had paid Rs. 10,000/- to the complainant. In such a fact situation, there was no reason for them to take law in their hands and indulge into crimes. Learned counsel therefore urged that the subsequent allegation against the revisionists are only to bring the criminal law into motion and exert pressure to seek payment of balance amount, when dispute in real essence was purely civil in nature. Power of the Magistrate was wielded not genuinely but as an unscrupulous pressure tactics and to harass revisionists. Articulating the argument, learned counsel submitted that since, the accused had not approached the complainant illegally or in any illegal manner possessed with any criminal intend, offence under 352 IPC is not made out in absence of any mens rea. Sri Tyagi relied upon Apex Court decision in State of Haryana and others Vs. Ch. Bhajan Lal and another Shri S.A. Khan, and inviting attention of the Court on grounds numbers 8 and 9 of the aforesaid decision urged that revisionists prosecution is motivated with harassment without disclosing any offence and, therefore, entire prosecution launched against the revisionists and their impugned summoning order which has been passed in a routine manner, without critically scanning the charges and the allegations leveled, deserves to be set aside.

4. Learned AGA, conversely assailed revisionists submissions by contending that at the stage of summoning only a prima facie case has to be looked into and once that is disclosed there was no reason for the accused not to be summoned and impugned order therefore cannot be sniped for that reason as it does not suffer from any illegality or misuse of jurisdiction. At the very inception of the prosecution and at the very initial stage of summoning allegations leveled in the complaint as well as spelt out in statements under Sections 200 and 202 Cr.P.C. have to be prima facie taken as correct. Assess to justice cannot be denied to the complainant nor the prosecution can be stifled and nipped into bud at its very inception and the complainant must be afforded an opportunity to establish the charge urged learned AGA, who therefore wrapped up her submissions by urging that revisionists arguments sans merits and be dismissed and impugned order of summoning be affirmed being in consonance with too well entrenched trite law regarding summoning of the accused.

5. I have heard both the sides and have vetted through the record critically and carefully. From the bare reading of the complaint, without adding or subtracting anything into it, it transpires that core grievance raised in the complaint was nonpayment of balance amount of sale proceeds of the potatoes by the revisionists. At the time of entering into the contract the nature of transaction was civil having no element of mens rea at all. No intention to commit criminal breach of trust or criminal misappropriation existed then. It is to be taken note of that the breach of trust can be both civil and criminal but for bringing it with the ambit of criminal breach of trust, the element of committing misappropriation has to be present right in the beginning, otherwise the fine but well illuminating distinction between civil and criminal breach of trust will be obliterated. Complainant, in the present case also had no idea about criminal element and that is why he waited for long three years to receive part payment and even at that stage he had not raised any grievance regarding any offence being committed by the revisionists and not a word has been spelt out by him either in his complaint or in his statement. Furthermore there was no entrustment of the goods. It was purchased by way of sale and the seller had received part payment of the same and the transaction being a valid transaction under Sales of Goods Act cannot be cloaked as being an illegal transaction and/or entrustment with stipulation to return the goods and contrary to it at all times only entire price thereof was demanded. Thus as soon as transaction of sale was complete by handing over to goods, the domain over it becomes that of purchaser and he is free to deal with it. Articulating the opinion it is recollected that it is not the complainants case that entire transaction was fraudulent nor he has leveled any charge u/s 420 I.P.C. Once that being the fact and purchase was damnum and there was no entrustment of the property, most pivotal and un-eschewal ingredient to disclose offence u/s 406 IPC is missing from the complaint.

6. Coming to the question of dishonest misappropriation or converts to his own use by the accused revisionists, albeit that is not essential in view of previous finding, on the said aspect also it is well evident that there was no misappropriation as the complainant has not alleged the mode and manner in which said misappropriation has been done. Otherwise also departing with goods purchased in a valid sale which was well within the knowledge of the complainant is no misappropriation. For the same reason it can be said that the potatoes were never converted to own use illegally and dishonestly by the revisionists. Thus both the essential elements for making out offence u/s 406 IPC are missing from the complaint. The transactions between both the parties since very inception was civil in nature being a pure business transaction. According to the complainant himself substantial payment of purchase Rs. 1,15,000/- had already been made by the revisionists accused to him. Moreover, from the point of view of the period, which is admitted to the complainant, if the allegations are scanned and summated, it transpires that the transaction of purchase and sale was dated 30.8.1999. In between 30.8.1999 and 22.11.2002 for a period of three years only Rs. 1,15,000/- were paid by the accused revisionists to the complainant. If the complainant can wait such a long period to receive the sale proceeds, it will be puerile to cogitate that in such a transaction criminal intention and mens rea existed at any point of time. Further, it is discernible that two years thereafter on 8.12.2004 that the accused had approached the complainant at his shop and had paid Rs. 10,000/- more. In such a view, it is writ large on the leveled allegations itself that no mens rea and no intention to commit breach of trust existed with the accused at any point of time.

Once that being the fact, so far as offence u/s 406 IPC is concerned, the same prima facie is not disclosed against the accused revisionists.

7. Turning to another argument, in one paragraph which is paragraph No. 4 the entire allegations have been incorporated and, true it seems, that the same is by way of pressure tactics to be applied on the accused so that they may make the payment. Instead of it all being genuine facts, the same are used as a device to coerce the revisionists. These embellished allegations do not make out a prima facie case of disclosing offences under Sections 506, 352 IPC. For 506 IPC offence specific words are required which in the present complaint is missing. Even from the perusal of the complaint, without any addition or subtraction, it is writ large that the incident occurred on 8.12.2004 and on 9.12.2004, Circle officer of the area was informed by the complainant but then the complainant again waited for a period of further three months and it was only in March, 2005 that he has filed the complaint. This delay on the part of the complainant also speaks volumes against genuineness of the allegations leveled by him and presence of any criminal intent possessed by the accused respondents.

8. In my view, I am fortified by the following decisions of the Apex Court.

9. In Joseph Salvaraj A. Vs. State of Gujarat and Others, , it has been held as under:

15. Criminal breach of trust is defined u/s 405 IPC and Section 406 thereof deals with punishment to be awarded to the accused, if found guilty for commission of the said offence i.e. with imprisonment for a term which may extend to three years, or with fine, or with both. Section 420 IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined u/s 415 IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly does not reflect any such dishonest intention ab initio on the part of the appellant. Section 506 IPC deals with punishment for criminal intimidation. Criminal intimidation, insult and annoyance have been defined in Section 503 IPC but the FIR lodged by the complainant does not show or reflect that any such threat to cause injury to person or of property was ever given by the appellant to the complainant.

16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainants FIR, Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainants FIR, charge-sheet, documents, etc. or not.

17. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the appellant. It does not meet the strict standard of proof required to sustain a criminal accusation. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra v. State of U.P., relevant part thereof is reproduced herein below:

27. ... A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the Courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.

18. In fact, all these questions have been elaborately discussed by this Court in the most of quoted judgment in State of Haryana v. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed by the accused, is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the Court, at least after having gone through the FIR, which discloses only a civil dispute.

19. The appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the appellant and Respondent 4 complainant, and is still sub judice. In the said suit, the appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by the trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the appellant and Respondent 4 complainant. There was no cause of action to even lodge an FIR against the appellant as neither the complainant had to receive the money nor was he in any way instrumental to telecast "GOD TV" in certain areas of Ahmedabad. He appears to be totally a stranger to the same. The appellants prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.

20. Thus, looking to the matter from all angles, we are of the considered opinion that the prosecution of the appellant for commission of the alleged offences would be clear abuse of the process of law. The FIR under the circumstances deserves to be quashed at the threshold. We accordingly do so. The appeal is, therefore, allowed. The order of the learned Single Judge is set aside. The FIR dated 5-9-2006 lodged by Respondent 4 complainant with Odhav Police Station, Ahmedabad stands quashed and all criminal proceedings emanating therefrom also stand quashed.

10. In yet another decision Thermax Ltd. and Others Vs. K.M. Johny and Others, it has been held as under:

29. The entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406, 420 read with Section 34, IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable contains the favour of civil nature and taking note of the closure of earlier three complaints that too after thorough investigation by the police, we are of the view that the Magistrate committed a grave error in calling for a report u/s 156(3) of the Code from the Crime Branch, Pune. In view of those infirmities and in the light of Section 482 of the Code, the High Court ought to have quashed those proceedings to safeguard the rights of the appellants. For these reasons, the order passed by the Judicial Magistrate First Class, Pimpri in C.C. No. 12 of 2002 on 20.8.2007 and the judgment of the High Court dated 11.1.2008 in Criminal Writ Petition No. 1622 of 2007 are set aside. The complaint filed by Respondent No. 1 herein is quashed.

11. In Alpic Finance Ltd. Vs. P. Sadasivan and Another, , it has been held as under:

10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that respondents committed the offence u/s 420, I.P.C. and the case of the appellant is that respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any willful misrepresentation. Even according to the appellant, parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.

11. Moreover, the appellant has no case that the respondents obtained the article by any fraudulent inducement or by willful misrepresentation. We are told that respondents, though committed default in paying some installments, have paid substantial amount towards the consideration.

12. Having regard to the facts and circumstances, it is difficult to discern an element of deception in the whole transaction, whereas it is palpably evident that the appellant had an oblique motive of causing harassment to the respondents by seizing the entire articles through magisterial proceedings. We are of the view that the learned Judge was perfectly justified in quashing the proceedings and we are disinclined to interfere in such matters.

In the present case also what is evident and discernible from the complaint allegations are that the dispute was purely civil in nature having no element of criminality attached with it and therefore applying above decisions/law by the Apex Court it can be safely concluded that prosecution of the revisionists are nothing but their harassment as no offence of any kind is disclosed against them.

Wrapping up the discussion and drawing final conclusions, I am of the opinion that no offence is disclosed against the accused revisionists and their summoning order dated 25.5.2005 is wholly illegal and unjustified and the complaint was filed against them with malicious intent only to harass them and to bring them to knees for early payment of balance amount.

Revision therefore is allowed. Impugned summoning order dated 25.5.2005 as well as proceedings of complaint case No. 330 of 2005, Dinesh v. Pawan, under Sections 406, 504, 506, 352 IPC, P.S. Hapur District Ghaziabad pending before Additional Judicial Magistrate, Hapur Kotwali, District Ghaziabad are hereby quashed. Revision is allowed as above.