R K KOTHARI Vs. JOSHI PHARMA

JUDGEMENT

(1.) G. B. Singh, J. This is a petition under Section 482, Cr. P. C. for quash ing the proceedings against the petitioners in criminal complaint case pending in the Court of Judicial Magistrate, Lucknow.

(2.) M/s. Jintan Clinical Thermometer Company (India) Pvt. Ltd. , Bombay manufactures Clinical Thermometers. R. K. Kothari, petitioner No. 1 is its Chairman and Deepak R. K. Kothari and B. R. Kothari petitioner Nos 2 and 3 are Managing Director and Director, respectively of the said Company. M/s. Joshi Pharma (hereinafter referred to as the Firm) is a partnership Firm and deals in such Thermometers. It carries on its business at Lucknow. The Firm entered into agreement with M/s. Jintan Clinical Thermometer Company (hereinafter referred to as the Company) for supply of Clinical Thermometers somewhere in the year 1983 and deoosited a sum of Rs. 2,500/- with the Company as security money. In pursuance of that agreement the Company supplied Thermometers. Two consignments were, according to the com plainant, sub-standard. The Firm, therefore, returned those consignments wrrh the request to replace the Thermometers. These consignments were worth Rs. 5,706. 96 paise. It appears that the Company neither replaced the Thermometers nor refunded the security deposit. The Firm, therefore, filed ai complaint against the petitioners alleging that they have committed crimina breach of trust punishable under Sections 405, 406 and 409, I. P. C. It appears that the learned Magistrate after recording evidence undjr Sections 200 and 202, Cr. P. C. summoned the accused petitioners. They, therefore, filed the present petition for quashing the criminal proceedings started on the aforesaid complainant alleging that they could not replace the Thermometers due to lay off and the dispute between the parties is of civil nature and they have not committed any offence of criminal breach of trust. It has also been alleged by them that necessary ingredients of the offences under Sections 406 and 409, I. P. C. have not been disclosed in the complaint.

(3.) THESE observations show that where the allegations simply disclose a civil liability and do not constitute any offence, the persons complained against cannot be proceeded against and be held criminally liable. In Makhlal Raj v. Emperor, (1926) 27 Cr LJ 949 (Patna), it has been held that where a sum of money is advanced as part of a contract and not by way of trust, a dispute arising out of a breach of the contract is one of a civil nature and no criminal action lies.