A commercial transaction or a contractual dispute may involve a criminal offence, and the mere availability of a civil remedy does not warrant quashing of criminal proceedings if the allegations disclose a criminal offence.

ORDER :

Shri Prashant Sharma, counsel for the applicants. Shri Vivek Jain, counsel for the respondent. With the consent of the parties, heard finally.

2. This application under section 482 of Criminal Procedure Code has been filed against the order dated 1-9-2010 passed by JMFC, Gwalior in Criminal Case No. 13081/2010, by which the Magistrate has taken cognizance against the applicants for offence punishable under section 406 of Indian Penal Code.

3. A preliminary objection has been raised by the Counsel for the respondent that the order dated 1-9-2010 is a revisable order and instead of filing Criminal Revision before the Sessions Court, the applicants have directly filed the application under section 482 of Criminal Procedure Code. The objection raised by the Counsel for the respondent has some substance. The order taking cognizance is a revisable order, however, this application under section 482 of Criminal Procedure Code was filed in the year 2012 and since it has been entertained, therefore, it would not be appropriate to dismiss the present application on the ground of availability of alternative remedy. Hence, the matter is heard finally.

4. The necessary facts for the disposal of the present application in short are that the respondent filed a criminal complaint against the respondents for offences punishable under section 406 and 420 of Indian Penal Code. The case of the respondent is that an agreement was entered into between the applicant no.1 and the M.P. State Electricity Board for the repairing of transformers. 12 transformers of 63 K.V.A. Capacity, 17 transformers of 100 K.V.A., 02 transformers of 200 K.V.A. and 01 transformer of 1.6 M.V.A. Capacity were handed over to the applicants for repairing purposes. However, the same have not been returned back. Similarly 01 transformer of 25 K.V.A. capacity, 25 transformers of 63 K.V.A. capacity, 27 transformers of 100 K.V.A. capacity, 08 transformers of 200 K.V.A. capacity, 02 transformers of 1.6 M.V.A. capacity, 01 transformer of 63 K.V.A. capacity and 07 transformers of 100 K.V.A. capacity are still lying in the godown of the applicants but the applicants have not repaired those transformers although they are within the guarantee period. Written information was given to the applicants on several occasions, but neither the applicants have returned the transformers after repairing the same, nor they have repaired transformers which are lying in the godown of the respondent, as a result of which the respondent has suffered huge financial loss. It was further alleged that the applicants are in possession of the transformers in the capacity of a trustee and by not returning the same, they have committed the offence of criminal breach of trust. It was further alleged that the respondent has come to know that the applicants, after repairing the transformers of the respondent have given to some other Company. Thus, a criminal complaint for offences under section 406 and 420 of Indian Penal Code was filed.

5. The statement of the complainant’s witness was recorded and thereafter, the Trial Magistrate by order dated 1-9-2010, framed charge under section 406 of Indian Penal Code.

6. Being aggrieved by the order dated 1-9-2010 passed by the Magistrate, the present application under section 482 of Criminal Procedure Code. It is submitted by the Counsel for the applicants that along with the complaint, an authority letter has not been filed to show that Add. Superintending Engineer was authorized by the Company to file the complaint. It is further submitted that it is no where mentioned in the Complaint that on what date the transformers were entrusted to the applicants. The allegations as made in the complaint make out a case of civil in nature. It is further submitted that the contract was entered into between the applicants and the MPEB and there was no privity of Contract between the applicants and the complainant.

7. Per Contra, it is submitted by the Counsel for the respondent tha