The main legal point established is that criminal prosecution should not be used for private vendetta, matters of civil nature should not be the subject of criminal offense, and the duty of the petitioner to approach the court for quashing criminal proceedings based on the material on record.

Kuldip Singh, J.

1. This is a petition under Sec.482 Cr. P. C. for quashing criminal complaint No.152-2/06, titled Rakesh Kumar V/s. Shiv Mittal pending in the Court of learned Judicial Magistrate Ist Class, rohru, District Shimla.

2. The further relevant facts are that respondent had filed complaint under Sec.406 IPC against petitioner on the allegations that petitioner had contacted the respondent to send apple boxes and therefore respondent had sent 87 apple boxes to the petitioner on 21.8.2006 in vehicle No. HP-63-1328 vide builty no.001157. The consignment was received by petitioner and freight was also paid by the petitioner to the driver of vehicle No. HP-63-1328.

3. On 22.8.2006, the respondent had again sent 84 apple boxes to petitioner in vehicle No. HP-10b-0207 vide builty No.001158, this consignment was also received by the petitioner and paid freight charges of the vehicle. On 23.8.2006, the respondent had again sent 88 apple boxes to petitioner in vehicle No. HP-03-1435 vide builty No.001156 and the consignment was received by the petitioner, the freight charges amounting to Rs.3400/- were paid by the petitioner to the driver.

4. The further case of the respondent is that he had sent in all 259 apple boxes to petitioner, the rate was rs.700/- per box and sale proceeds of the apple boxes was Rs.1,82,000/-. The respondent had requested the petitioner several times to pay the sale proceeds of the apple boxes but the petitioner has not paid the sale proceeds of the apple boxes and has thus committed criminal breach of trust by dishonestly misappropriating and converting to his own use the apple boxes. On those allegations the complaint under section 406 IPC was filed. The learned Judicial Magistrate has issued process to the petitioner.

5. The petitioner has alleged that no case under Sec.406 IPC is made out against the petitioner. Hence he has filed the petition under Sec.482 Cr. P. C. for quashing the proceedings. The learned counsel for the petitioner has submitted that on the basis of allegations in the complaint, preliminary evidence, no case under Sec.406 IPC is made out against the petitioner. The alleged grievance of the respondent is of civil nature and no criminal case is made out against the petitioner. The learned counsel for the respondent has submitted that the petitioner is at liberty to approach the learned Judicial Magistrate and submit before that Court that there is no sufficient material for issuing process against the petitioner. It has been submitted that petitioner has failed to make out a case for quashing of proceedings under Section 482 Cr. P. C. on the basis of material on record. The present case is not a case of no evidence.

6. I have heard learned counsel for the parties. The respondent in the complaint has alleged that the apple boxes were sent to petitioner in the vehicle and the petitioner had paid freight charges to the driver of the vehicles after the apple boxes were delivered to the petitioner. It is not the case of the respondent that he himself delivered the apple boxes to the petitioner. CW-1 Rakesh Kumar has stated that on 21.7.2006 he had sent 87 apple boxes in vehicle No. HP63-1328 vide Bilty No.001157. The accused had paid Rs.3500/-freight to the owner of the vehicle. On 22.8.2006 he had sent 84 apple boxes in vehicle No. HP-63-1435 vide Bilty No.001156 to accused.

7. In all he had sent 259 apple boxes. He has hot stated that the apple boxes which were sent by him were actually delivered to the petitioner. CW-2 Joginder has stated that he transported the apples of Rakesh in vehicle No. HP-63-1328 and the apples were unloaded at shop No.18. CW-2 Joginder has not stated that he had delivered apple boxes to accused. CW-1 Rakesh has stated that accused is the owner of shop no.18. CW-2 Joginder has stated that he transported the apples in vehicle No. HP-63-1328. He has not stated that he transported 87 boxes and delivered to the accused. CW-2 has also not stated that on