The main legal point established is that transactions involving non-payment of goods supplied on credit basis may not necessarily constitute criminal breach of trust or cheating, and the court may quash proceedings if it finds an abuse of the court process.

The petitioner, who is accused in C.C.Nos.208/2003 and 209/2003 on the file of the Judicial Magistrate No.5, Salem, has filed this petition, to quash the proceedings against him in both the cases.

2. This order shall dispose of the above two petitions.

3. In both the cases, the respondents herein as complainants accused the petitioner, that on the assurances and promises made by the accused, goods were supplied to him, though the accused undertook to pay the value of the goods supplied to him, within 30 days from the date of invoice and in case, he could not pay the amount within the period, the amount due would carry interest at 24% per annum, he was not prompt in clearing the dues without delay.

4. It is the further contention of the respondents/complainants in both the cases, that the accused subsequently also failed to keep up his promise, though he assured for prompt payment, on that basis, goods were also supplied to him. Therefore, according to the complainants, in both the cases, the accused had failed to clear a sum of Rs.9,01,732/- (in C.C.No.208/2003) and a sum of Rs.4,14,087/- (in C.C.No.209/2003). It is the further case of the complainants that believing the representation and assurances made by the accused, not only at the first instance, but also at the later point of time, material goods were supplied to him. But for the false representation made by the accused, the complainants would not have ventured to supply the materials. In this view, according to the petitioner, the non payment of the amount for the goods supplied, would amount to criminal breach of trust, as well as cheating and therefore, he should be dealt with under Sections 406 and 420 I.P.C. in addition to 120(B) I.P.C.

5. On the basis of the averments contained in the complaints, and on the basis of the sworn statements recorded, the Judicial Magistrate had taken the case on file and issued summons. After appearance by the accused, either after the issue of NBW or otherwise, these petitions are filed, aiming to quash the proceedings in both the cases.

6. The learned counsel for the petitioner would submit, that even taking the complaints as such, the allegations available therein, are insufficient, to make out a case, either under Section 406 or under Section 420 I.P.C. and therefore, allowing the case to be tried, will not serve any earthly purpose. It is the further submission of the learned counsel, that the proceedings initiated by the complainants, are an abuse of process of law and therefore, both the cases are liable to be quashed. It is the further contention of the learned counsel for the petitioner, that there is no criminal liability and if at all, it could be called only as civil liability, for that the prosecution would not lie, as ruled by the Apex Court but the complainants, in order to circumvent the civil litigation, to have a short cut root, to harass the petitioner, had approached the Court, for which it is not the forum for prosecution and it should be held as an abuse of process of law.

7. The learned senior counsel, Mr. M. Ravindran appearing for the respondents/complainants, on the other hand would contend, though the transaction between the parties could be described as civil in nature, there is a criminal liability also, because of the breach committed by the petitioner/accused, with a dishonest intention, inducing the complainants, to deliver the goods and therefore, when both remedies are available to the complainants, prosecuting the accused, who had committed the offence under Sections 406 & 420 I.P.C., is not a bar.

8. It is an admitted position, that there was business transaction between the petitioner and the complainant/respondent (Crl.O.P.No.37233/2003) commencing from 16.4.1996 and the same was continued till 2003. In the other case, viz., Crl.O.P.No.37232/2003, the business transaction between the complainant and the accused, commenced on and from 13.5.1998 and it continued till 2003. As per the complain