Banwari Lal Sharma, J.

Petitioner-accused Sitaram Meena preferred this criminal writ petition under Article 226 of the Constitution of India read with Rule 315 (1) H of the Rajasthan High Court Rules, 1952 and prayed for quashing impugned FIR No. 71/2017 dated 03.02.2017 (Annexure-1) registered at Police Station Kanota, Jaipur (East) for offence punishable under Sections 420, 406 and 120-B of IPC.

2. The brief facts of the case are that respondent No.2-complainant filed a criminal complaint before learned Metropolitan Magistrate No.24, Jaipur Metro against the present petitioner wherein it was alleged that on instance of petitioner-accused he excavated soil from his agricultural field and also operated J.C.B. machine and transported the soil in the intervening period of 05.05.2015 to 01.06.2015, the total work was done for Rs.6,72,950/- out of which petitioner-accused paid only Rs.2,83,000/-, remaining amount Rs.3,89,950/- has not been paid even after repeated calls and reminders, rather gave threatenings and misbehaved with respondent.

3. The aforesaid complaint was sent under Section 156 (3) Cr.P.C. for investigation to SHO, Police Station Kanota. In compliance of the order of learned Metropolitan Magistrate No. 24, Jaipur Metro, FIR No. 71/2017 for offence punishable under Sections 420, 406 and 120-B IPC was registered at Police Station Kanota and investigation commenced.

4. Learned counsel for the petitioner submits that prior to filing criminal complaint and registering FIR, respondent No.2-complainant issued legal notice (Annexure-2) on 23.07.2015 for demand of due amount of Rs.3,89,950/-. Since, the demand was wrongly created, therefore petitioner-accused through his counsel Shri Ram Gopal replied the notice instantly on 28.07.2015. Copy of notice is submitted as (Annexure-3) wherein it is clearly stated that the rates of excavation are wrongly alleged as Rs.850/- per dumper while it was decided for Rs.700/- per dumper only and the total amount was only Rs. 2,83,000/- which has already been paid. Thereafter, without filing civil suit, respondent No.2 just to create pressure of Police on petitioner-accused filed criminal complaint on 27.01.2017 after 18 months of issuing legal notice (Annexure-1).

5. He submits that from the bare perusal of complaint/ FIR, it reveals that FIR was lodged only to recover the due amount for offence punishable under Section 406 IPC, there should be some entrustment of property as enshrined in Section 405 of IPC. Similarly, for offence punishable under Section 420 IPC, there should be intention of deceiving, fraudulently or dishonestly to deliver any property to any person.

6. But from the perusal of notice (Annexure-2) and FIR (Annexure-1), there is not a single word regarding deceiving, therefore, even if the averments mentioned in the FIR are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused, therefore the impugned FIR (Annexure-1) may be quashed and set aside.

7. Learned counsel relied on State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., (1992) Supp1 SCC 335. Per contra learned counsel for the respondent No.2-complainant supported the impugned FIR and submitted that from the allegations levelled in the FIR, offence under Sections 406, 420 and 120-B is prima facie made out as petitioner-accused issued signed slips and done work and still he failed to make payment, therefore it is evident that petitioner was not intending to make payment of the work done from beginning. He submits that the writ petition may be dismissed.

8. Learned Additional Government Advocate fairly submits that from the perusal of FIR, it is apparent that the dispute between parties is of civil nature.

9. I have considered the submissions made at Bar. In the matter of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., (1992) Supp1 SCC 335, the Hon'ble Supreme court framed seven grounds on the basis of which the FIR can be quashed.