High Court of Patna

Binod Kumar and Ors. Vs. The State of Bihar and Ors.

MANU/BH/0048/2019

11.01.2019

Criminal

Mere fact that, complaint relates to a commercial transaction or breach of contract for which a civil remedy is available is not by itself a ground to quash criminal proceedings

Criminal Miscellaneous application is for quashing the order rejecting the petition filed for discharge of the Petitioner. The allegation against the Petitioners is that, they being Directors of Magadh Coloniser Private Limited, which is a Company had neither given the flat booked in the name of the wife of the complainant nor returned the entire amount.

The complainant being a private citizen had paid money to the Company for booking a flat, which was done and out of the total amount agreed, a substantial amount was paid. Thus, a common man investing his hard earned money in the Company which undertook to provide a flat to the complainant, a solemn obligation was cast upon the Company to deliver such flat after taking the remaining amount. Thus, non fulfillment of the commitment on behalf of the Company cannot be said to be a purely civil dispute.

It is a common practice that, if the projects get delayed, the price of land and property escalates and then the owners/developers try to extract more money from the intending buyers and because the intending buyers have already given huge amount to such owners/builders, they are caught and stuck with such investment and are not in any bargaining position. Thus, even by return of the money, it is ultimately such buyers who suffer, because the money returned to them is what they had put in many years ago and in actual terms, the said money loses its value on the one hand and on the other hand, they would not be able to get any property/flat at the same rate after so many years elsewhere. This itself, in the opinion of the Court, is a fraud played by such owners/builders to cheat and cause undue loss and harassment to citizens.

The Petitioners have been made accused describing them as Directors of the Company. Thus, the fact that the Petitioners' Company has not been named first through the Directors, who are the Petitioners, is only hyper-technical and would not in any way prove fatal for the prosecution. Further, the averments made in the complaint and the facts as stated by the inquiry witnesses, do disclose offences which are punishable on the criminal side. The Hon'ble Supreme Court in a catena of decisions has held that, there may be instances where there can be both civil and criminal liability arising out of the same transaction and in such cases, the Court ought not to interfere in the criminal proceeding at the initial stage, which should be allowed to be taken to their logical conclusion.

A given set of facts may make out a civil wrong as also a criminal offence. Mere fact that, the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegation in the complaint disclose a criminal offence or not. In the present case, the Court finds that criminal offence is disclosed in the complaint. In the present case, the complainant not only has a case on the civil side with regard to either recovery of his money or delivery of the flat, but equally on the criminal side also. The application stands dismissed.

Tags : Commercial transaction Breach Proceedings Quashing

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