JUDGMENT :

Sanjay Dhar, J.-Petitioners, in this petition, have challenged FIR No.40/2018 for offences under Sections 409, 420, 506 read with Section 34 RPC registered with Police Post, Imam Sahib, Shopian.

2. Before coming to the grounds of challenge urged in the petition, it would be apt to refer to the contents of the impugned FIR.

3. Complainant-respondent No.2 has alleged in the impugned FIR that the petitioners, who happen to be the proprietors and partners of two business firms, namely, M/S Apachi Professional Services and M/S Himachal Fruit Company, approached the complainant in September, 2017, for doing transaction of purchase of apple fruit from him. It is alleged that the petitioners represented themselves to be honest businessmen and relying upon these representations, the complainant after purchasing fruit from apple growers, supplied the fruit costing an amount of Rs.2,52,80555/- to the petitioners. It is further averred in the FIR that during the continuance of the transaction, the petitioners made periodic payments to the tune of Rs.1.00 crore to the complainant as part consideration for the apple fruit supplied by him to the petitioners. It was promised by the petitioners to the complainant that balance amount of sale consideration i.e., Rs.1,52,80555/- would be paid to him within a few days but the petitioners left from the temporary residence in which they were putting up in Kashmir, which indicates their intention of breach of trust. According to the complainant, the petitioners, with premeditated conspiracy, made him to deliver the fruits to them, whereafter they fled from their temporary residence in Kashmir without paying the full amount to the petitioner thereby cheating him and causing wrongful loss to him. It is alleged that the complainant made demands of balance amount from the petitioners on telephone but they instead of making the payment of balance amount, extended threats to him.

4. It is contended by the petitioners that the contents of the impugned FIR do not disclose commission of any offence by the petitioners. It is further contended that the transaction between petitioners and the complainant-respondent No.2 is purely of civil nature and that respondent No.2, in order to pressurize the petitioners to settle the accounts, has lodged the impugned FIR with a malafide intention. It is also contended that respondent No.2 has implicated not only petitioners No.1 and 2 but has also implicated young sons of petitioner No.2 as accused in the impugned FIR without there being any role attributable to them.

5. Respondents have contested the petition by filing their responses. In the response filed by respondent No.1, it has been contended that the petitioners, who hail from Shimla, are habitual offenders and they purchase fruit from people at Shopian and other places and do not pay the dues to the fruit growers. It is further averred that petitioners had previously filed a similar petition challenging the impugned FIR which was dismissed as withdrawn and, as such, the instant petition is not maintainable.

6. Respondent No.2, in his reply, has reiterated the allegations made in the impugned FIR and has claimed that on a plain reading of the impugned FIR, offences are made out against the petitioners.

7. I have heard learned counsel for the parties and perused the pleadings of the parties.

8. Before coming to the merits of the case, it is necessary to deal with the preliminary objection raised by the respondents with regard to maintainability of the petition on the ground that earlier petition under Section 561-A of J&K Cr. P. C filed by the petitioners was dismissed as withdrawn. In this regard it is to be noted that principles of res judicata are not applicable to criminal proceedings. Even otherwise, the earlier petition filed by petitioners has not been dismissed on merits but the same has been dismissed as withdrawn. Therefore, bar to file second petition under Section 561-A Cr. P. C is not applica