Abuse of process of law in invoking criminal proceedings for a civil dispute.

JUDGMENT

Harsimran Singh Sethi, J. (Oral) - CRM-5525-2020

As prayed for, application is allowed.

CRM-M-47799-2019

2. The present petition has been filed for quashing of FIR No.105 dated 12.06.2019 registered under Sections 406 & 420 of the IPC at Police Station City South, District Moga and all the subsequent proceedings arising therefrom on the ground that the dispute is civil in nature.

3. Learned counsel for the petitioner argues that even, from the bare reading of the present FIR, it is clear that the dispute is with regard to the recovery of payments, which according to the complainant, he is entitled for, in respect of the work, which has been executed by the complainant in favour of the petitioner in the year 2015 as per the agreement executed between the complainant and the petitioner. Learned counsel for the petitioner submits that as per the complainant, allegedly a sum of Rs.42,38,500/- is due towards complainant in terms of the said agreement and the said amount is not being paid by the M/s Sahil Builders, of which the petitioner is a partner. Learned counsel for the petitioner submits that as the alleged claim of Rs.42,38,500/- is being made on the basis of an agreement in respect of the work purported to have been executed by the complainant for M/s Sahil Builders, ingredients of Sections 406 & 420 of the IPC are not fulfilled as the complainant has a remedy of filing civil suit for recovery of the said amount in case, the complainant is entitled for the same. Learned counsel for the petitioner submits that claim of the complainant in respect of Rs.42,38,500/- is vehemently denied by the petitioner and even otherwise as the dispute is totally civil in nature, learned counsel prays that the present FIR along with subsequent proceedings initiated, may kindly be quashed.

4. Learned State counsel concedes the factum of agreement between the complainant and M/s Sahil Builders, of which the petitioner is a partner for undertaking certain works and the fact that the claim of the complainant arises out of the said agreement in respect of the works purported to have been executed by the complainant for the petitioner.

5. Learned State counsel submits that offence of criminal breach of trust is made out, keeping in view the facts and circumstances of this case.

6. Learned counsel appearing for the complainant submits that though, agreement between the parties is a conceded position and complainant is entitled for an amount of Rs.42,38,500/- as per the work executed under the said agreement as the complainant has laid down Optical Fibre Cable on behalf of M/s Sahil Builders but, despite the execution of the said work, payment is not being made to the complainant, which shows that the petitioner had an intention to defraud the complainant right from the beginning as payments due to the complainant are not being released by the petitioner. Learned counsel appearing for the complainant submits that not only charges have been framed but, even the witnesses have been examined and, therefore, prayer of the petitioner for quashing of FIR at this stage, may kindly be declined.

7. I have heard learned counsel for the parties and have gone through the record with their able assistance.

8. From the facts, which have been narrated hereinbefore, it is clear that there was an agreement executed between the complainant and the petitioner for execution of certain works, which the complainant executed and the claim of Rs.42,38,500/- of the complainant arises out of the work executed under the said agreement. The said claim of the complainant in respect of Rs.42,38,500/- is not based upon entrustment of the said amount to the petitioner but entitlement of the same is being claimed on the basis of the execution of certain works, which was done in pursuance to the agreement between the parties. In the present FIR, Sections 406 and 420 of the IPC have been invoked on the basis of the allegations and this Court is to examine as to whether, the present is