2. Petitioner seeks quashing of the cognizance order dated 13.06.2008 passed by the learned Judicial Magistrate, 1st Class, Araria in Complaint Case No. 565C of 2008 thereby taking cognizance of offence under Sections 406 and 420 of the Indian Penal Code.

3. Complainant-O.P. No. 2 filed a complaint stating that in the year 2003, accused-petitioner having licence of export approached him to supply him foodgrains for exporting to Bangladesh, as he deals in purchase and sale of foodgrains. Issue of H.Form was raised by the complainant then accused-petitioner assured that he would make the payment regularly after receiving each consignment and before final settlement of the account, H.Form would be handed over to him. Complainant used to send foodgrains to the destination mentioned by the accused petitioner from the period 23.09.2003 to 10.03.2005. Petitioner also made payment by various cheques with regard to price of the foodgrains being supplied regularly, but he did not make payment with respect to some amount. It is alleged by complainant that foodgrains worth Rs. 4,77,87,932/- was supplied to the accused, but he made payment only to the tune of Rs. 4,25,71,600/-, so payment of remaining amount of Rs. 52,16,332/- and H.Form were not given by accused despite persuasion made several times by the complainant. So, accused-petitioner used to evade to making such payment till the period 2006-07 so ultimately, he filed this case for realizing the remaining amount and also H.Form claim of Rs. 3,82,334/-.

4. Learned counsel for the petitioner submits that there was an oral agreement between two for purchase and sale of foodgrains, petitioner was having export licence for exporting foodgrains to Bangladesh entered into oral contract with the complainant to supply him foodgrains; so for over a period of two years, in several transactions, foodgrains were supplied by the complainant and petitioner used to make payment regularly so he has made all payments to the complainant but dispute is raised by the complainant that instead of Rs. 4,77,87,932/-, total amount of the foodgrains supplied by him, petitioner has paid only Rs. 4,25,71,600/-, so there was short of Rs. 52,16,332/- and odd amount. He has further submitted that there is no any oral agreement for giving H.Form because he paid the price of supplied foodgrains inclusive of the tax amount to the complainant.

5. Learned counsel further submits that there is no ingredient of both offences, under Sections 406 and 420 of I.P.C., are made out in which cognizance has been taken, there is complete absence of the fact relating to entrustment of any property, as foodgrains were supplied not once, but for over a period of time and he used to regularly make payments by cheques, as this fact is also disclosed from the contents of complaint petition itself. So there is no any entrustment rather as per agreement, there was a business deal between both sides and only dispute is being raised that he has paid lesser amount though dispute is of accounting. Learned counsel has further submitted that in order to draw the ingredients under Section 420 of I.P.C., there must be element of deception present right since inception means at the beginning, but it is not the case that he was not making payment i.e., the price of the foodgrains to the complainant; so in the present case civil dispute is being given a clock of criminal case. Learned counsel has placed reliance on a number of decisions of Hon’ble Supreme Court in the case of Rama Devi Vs. State of Bihar & Ors. reported in (2010) 12 SCC 273; of Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663; of Vesa Holdings Private Limited & Anr. Vs. State of Kerala & Ors. reported in (2015) 8 SCC 293 and of Robert John D’souza & Ors. Vs. Stephen V.Gomes & Anr. reported in (2015) 9 SCC 96, in