P.K.Deb, J.

1. This application is under Section 482 of the Code of Criminal Procedure for quashing the entire prosecution of the petitioner in relation to the Complaint Case No. 1437/98, now pending before the Judicial Magistrate 1st Class, Muzaffarpur. Prayer has also been made for quashing the order dated 17.12.1998 whereby cognizance has been taken against the petitioner under Sections 418/406 of the Indian Penal Code.

2. Opposite party No. 2, Baidyanath Jha, happens to be the Manager of M/s. Nirmala Pictures having its headquarters at Muzaffarpur and Patna carrying in business of distribution of films for Bihar and Nepal. Opposite Party No. 2 has entered into an agreement with M/s. Ramdeoji Art International whose partners are accused No. 1, Narendra Kumar Anchalia and accused No. 2, Kanhaiya Lal Anchalia having their headquarters in Calcutta, who were also engaged in film distribution. In the distribution of film "Gharwali Baharwali which was being produced by the petitioner, Pradeep Sharma the offer was made by the partners of M/s. Ramdeoji Art International which was accepted by the complainant and on their request handed over a demand draft of Rs. 2,51,000/-to the Anchalias (Accused Nos. 1 and 2) in favour of the petitioner. A written agreement was also entered into by which the complainant was given the right of distribution, exhibition and exploitation of the said film "Gharwali Baharwali" for the northern Bihar area. It is further asserted that the amount of advance to the tune of Rs. 2,51,000/- had been encashed in the account of the petitioner but then fraudulently and mischievously, the agreement with the complainant was frustrated and distribution right of the said film was given to M/s. Anjana Movies Private Ltd. and by that it is alleged that all the accused persons including the petitioner had committed the offence under Sections 406, 409, 420/120-B of the Indian Penal Code. On perusal of the complaint and after enquiry made under Section 202 of the Code of Criminal Procedure vide the order dated 17.12.1998 cognizance has been taken under Sections 418/406 of the Indian Penal Code against the accused persons including the petitioner and processes had been issued.

3. Challenging the criminal prosecution against the petitioner it has been submitted that for breach of contract or agreement thereof, there can be no criminal liability and civil liability might be there for which the complainant had already moved the Civil Court being Title Suit No. 112/98. Besides the petitioner and the Anchalias, M/s. Anjana Movies had also been made party in that suit together with Bihar Motion Pictures Association and when in that suit the complainant failed to have an injunction, the present criminal prosecution has been filed and it is submitted that in such circumstances the cognizance taken in the criminal case is totally bad in the eye of law. On the other hand it is submitted for and on behalf of the complainant-opposite party that only because a civil suit had been filed the criminal liability cannot be taken away and civil suit has been filed in different context. Here criminal case is with respect to cheating and defalcation/embezzlement of the money entrusted to the petitioner and other accused persons.

4. I have gone through the materials on record and also the injunction order passed and the complaint filed in the above mentioned Title Suit. Such Suit was filed for debarring M/s. Anjana Movies to distribute, exhibit and exploit the film "Gharwali Baharwali". Injunction was rejected mainly on the ground that already an agreement with Anjana Movies had been registered with the Bihar Motion Pictures Association and they had allowed Anjana Movies for distribution of the film in question. Nowhere in that Suit there was any prayer for realisation of the amount as deposited by the complainant with the petitioner through Accused Nos. 1 and 2, namely, the Anchalias. But here in the complaint case the allegation is th