1. Heard learned counsel for the parties.

2. The order taking cognizance, for offences under Sections 420, 406, 427 and 120B of the Indian Penal Code, as well as issuance of process, under Section 204 of the Code of Criminal Procedure (in short the “Cr.P.C.”), by order dated 04.06.2016, passed in Complaint Case No. 2530(C) of 2015, by the Court of learned Judicial Magistrate, 1st Class, Patna, has been sought to be quashed, in exercise of power under Articles 226 and 227 of the Constitution of India.

3. The petitioners are accused in the above referred complaint case brought by respondent no. 3 Mr. Rishu Bajaj.

4. The challenge is on the ground that the matter is of pure civil dispute and the allegation disclosed in the complaint petition and statement of the witnesses under Section 202 of the Cr.P.C. does not disclose commission of any offence, especially, the offences for which cognizance has been taken and the prosecution of the petitioners suffers from mala fide.

5. A brief facts leading to the filing of the complaint petition is that petitioner no. 1 Pankaj Agrawal @ Pankaj Dudhewala and respondent no. 3 Rishu Bajaj had entered into a partnership business through a registered deed dated 25.04.2012 at Annexure-5. The complainant had invested Rs.60,00,000/- in the business on the persuasion of the petitioners with understanding that 60 per cent of the profit would go to the complainant and 40 per cent to petitioner no. 1 Pankaj Agrawal. Petitioner no. 2 Vinay Dudhewala @ Binay Dudhewala @ Vinay Kumar Agrawal is a witness on behalf of petitioner no. 1 Pankaj Agrawal and father of the complainant had signed as a witness on behalf of the complainant on the said partnership deed. There was oral understanding that petitioner no. 1 Pankaj Agrawal would return Rs.60,00,000/- within two months. However, in April 2014, the complainant noticed some mismanagement in the business and defalcation of money by petitioner no. 1 Pankaj Agrawal. On protest of the complainant, petitioner no. 1 Pankaj Agrawal returned Rs.23,00,000/- to the complainant. Further discrepancy was noticed, allegedly, committed by petitioner no. 1 Pankaj Agrawal, to the extent that cheques were issued to fictitious firms, the balance sheet of profit and loss was not being property maintained etc.

6. For the aforesaid act, initially, Kotwali P.S. Case No. 535 of 2014 was lodged by respondent no. 3 against the petitioners. The petitioners sought for quashment of the FIR in Cr.W.J.C. No. 201 of 2015. During pendency of the aforesaid writ application, the police submitted Final Form No. 22 of 2015 on 20.02.2015 exonerating the petitioners from criminal liability and stating that the matter is of civil dispute. In the circumstances, petitioners withdrew the aforesaid writ application on 03.09.2015. The respondent no. 3 had already filed a protest petition in the aforesaid police case on 29.01.2015. In the circumstances, by order dated 13.07.2015, the learned court below accepted the final form submitted by the police in the aforesaid case and in the same stroke proceeded to treat the protest petition as complaint case. Accordingly, Complaint Case No. 2530(C) of 2015 was registered on 07.08.2015 which was transferred to the Court of M/s. Sangeeta Rani, learned Judicial Magistrate, 1st Class, Patna under Section 192(1) of the Cr.P.C. After inquiry, under Section 202 Cr.P.C., the learned Magistrate issued process to face trial against the petitioners.

7. Mr. Sandeep Kumar, learned counsel for the petitioners submits that the complaint petition does not constitute an offence and even if some cause of action is there, the dispute is of civil nature. He contends that the petitioner no. 1 as well as the complainant were working partners of the firm and having a definite share, the petitioners cannot be alleged to have misappropriated their own property when the petitioners had also share in the partnership business. At best, the complainant could ask for accounts of the fir