Point of Law: Even if any case has been filed by the complainant/informant before the consumer forum and the same has been dismissed on the ground of alternate remedy, the same could not clothe this case as a civil dispute.

JUDGMENT :

MOHD. FAIZ ALAM KHAN, J.

1. Heard Sri. Kunwar Mukul Rakesh, learned Senior Advocate, assisted by Kunwar Sushant Prakash, learned counsel for applicant, Sri. Yatindra Kumar Agnihotri, learned Additional Government Advocate for State and perused the record.

2. The instant petition has been filed for quashing the charge-sheet dated 23.10.2009 and the summoning order dated 30.11.2009, passed by learned Judicial Magistrate 1st, Sitapur in State vs. Ram Chandra Verma, Criminal Case No. 2845 of 2009 arising out of Crime No. 372 of 2009, under Section 406 I.P.C. P.S. Sidhauli, District Sitapur.

3. Though the service on opposite party no. 2 was reported to be sufficient vide communication dated 6.7.2010 of Chief Judicial Magistrate, Sitapur and Sri. L.P. Shukla, Advocate had filed his vakalatnama on his behalf but no-one is present for him today.

4. Necessary facts required for disposal of this application is that opposite party no. 2 filed an FIR against the applicant on 7.5.2020 Priti Saraf and Another vs. State of NCT of Delhi and Another in Criminal Appeal No. 296 of 2021 dated 10th March, 2021 at 21.30 hours at P.S. Kotwali Sidhauli, Sitapur stating therein that the opposite party no. 2 had contacted to buy one lac bricks at the rate of 1650/- per thousand bricks from the applicant and had paid Rs. 1,50,000/- through account payee cheque and Rs. 15,000/- as cash, however the bricks were not supplied and the applicant had also sold his brick kiln to some other persons and, therefore, has misappropriated the money of opposite party no. 2. After thorough investigation a charge-sheet was submitted by the Investigating Officer under Section 406 I.P.C. and the Magistrate has also taken the cognizance of the offence and vide summoning order dated 30.11.2009 summoned the applicant to face trial for the offence under Section 406 I.P.C. aggrieved by the same the instant petition has been filed by the applicant praying to quash the summoning order dated 30.11.2009, passed by learned Judicial Magistrate 1st, Sitapur in State vs. Ram Chandra Verma, Criminal Case No. 2845 of 2009 arising out of Crime No. 372 of 2009, under Section 406 I.P.C.

5. Sri. Mukul Rakesh, learned Senior Counsel vehemently submits that the instant case is of such a nature where by any stretch of imagination criminal proceedings could not be initiated as the dispute is purely of civil nature and even if the allegation of the FIR is taken on its face value, the same appears to be a case of breach of promise or contract on the basis of which only civil case could have been filed.

It is further submitted that there were no sufficient ground before the Magistrate to summon the applicant to face trial and the Magistrate has materially erred in summoning the applicant to face trial.

It is further submitted that the cognizance has been taken by the Magistrate without application of judicial mind and the order of taking cognizance and summoning the accused has been passed on proforma simply by filling up the blanks which reveals that the Magistrate has not applied his judicial mind.

It is further submitted that the proceedings before the courts below are nothing but the abuse of the process of law and, therefore, the same be quashed.

Learned Senior Counsel relied on a judgment of this Court dated 15.12.2017, passed in Petition (482 Cr.P.C.) No. 3551 of 2009 (Desh Bandhu Srivastava vs. State of U.P.)

6. Learned Additional Government Advocate for State while controverting the arguments of the learned counsel for applicant submits that the arguments of learned counsel for applicant is with regard to the factual aspects of the case which cannot be gone into by this Court while exercising jurisdiction under Section 482 Cr.P.C.

7. Having heard learned counsel for the parties and having perused the record, it is now, no more res integra and this Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in