Page No.# 1/8 GAHC010216982024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1275/2024 RAJAN MASIH S/O PARANJIT MASIH, R/O TEA KALAM, AJNALA, P.S.-AJNALA, DIST- AMRITSAR, PUNJAB VERSUS THE STATE OF ASSAM AND 2 ORS REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:RAFIKUL HAQUE S/O BAHAR ALI R/O VILL- GHOGA LOWTOLA P.S.-MUKALMUA DIST-NALBARI ASSAM PIN-781126 3:MASTAFA ALI S/O AHAMMAD ALI R/O VILL- GHOGA LOWTOLA P.S.-MUKALMUA DIST- NALBARI ASSAM PIN-78112 Advocate for the Petitioner : MR. T DEURI, MS. L WANGSA,MS A DAS,MRS. A GAYAN Advocate for the Respondent : PP, ASSAM, MR. B. D. KAKATI (R-2),MR. D SARMAH (R-2),MR. N J DUTTA (R-2),MR. S. J. SAHARIAH (R-2) Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 26.05.2026 1. Heard Mr. T. Deuri, the learned counsel for the petitioner. Also heard Mr. N. J. Dutta, the learned counsel for respondent nos. 2 and 3 as well as Mr. K. Baishya, the learned Additional Public Prosecutor for the State. 2. This Criminal Petition under Section 528 of BNSS, 2023 has been filed by the petitioner, namely, Sri Rajan Masih for quashing the proceedings of Complaint Case No. 8/2024 pending in the Court of Sub Divisional Judicial Magistrate (Sadar) at Nalbari under Section 403/406/420 of the Indian Penal Code. 3. The facts relevant for consideration of the instant Criminal Petition, in brief, are that the present respondent nos.2 and 3 namely, Rafikul Haque and Mastafa Ali filed a complaint case before the Court of learned Chief Judicial Magistrate, Nalbari against the present petitioner under section 403/406/420 of the Indian Penal Code. 4. The said complaint case has been registered as Complaint Case No. 8/2024. It is alleged in the Complaint Case by the present respondent nos. 2 and 3 that the present respondents (complainant) were having cordial business relationship with the present petitioner (accused). It is further stated that the respondent no.1 had obtained a permit bearing no. 839 dated 17.10.2023 from the Office of the Director of Animal Husbandry and Veterinary Department for transportation of cattle by road for the purpose of Page No.# 3/8 Dairy Farming. Thereafter, the present petitioner promised to the respondent nos. 2 and 3 for dispatching 24 nos. of cattle by road for a consideration amount of Rs. 13,00,000-/ including the transportation cost and other expenses incurred. It is also averred in the complaint petition that the present petitioner demanded an advance amount of Rs. 7,80,000/- from the respondents and accordingly, the respondent no.3 made a payment of Rs. 7,80,000/- to the present petitioner through Bank transactions on different dates and also promised to pay the remaining amount after receiving the cattle at Srirampur Gate Assam. 5. However, it is alleged in the complaint petition that after receiving the advance amount, the present petitioner did not dispatch the cattle as promised to the respondents/complainants. It is further alleged in the complaint that thereafter, the respondent no.2 made several phone calls to the petitioner with regard to the said matter and every time the petitioner made excuses to dispatch the cattle within a short period of time and thereafter, he stopped picking up phone calls from the complainants/respondents. 6. Mr. T. Deuri, the learned counsel for the petitioner has submitted that on the basis of the complaint filed by the respondents/ complainant, the Trial Court has taken cognizance of offence under Section 403/406/420 of the Indian Penal Code against the present petitioner. The learned counsel for the petitioner submits though the present petitioner agrees that there was an agreement between the parties regarding supply of the cattle, however he submits that after giving the advance amount, the respondents declined to give the remaining consideration amount to the present petitioner and therefore, the cattle could not be supplied to them. Page No.# 4/8 7. He further submits that the facts of this case, even if it is admitted, would give rise to only civil dispute as there is, at best, a breach of contractual obligation. However, he submits that no ingredients of the offences under Section 403/406/420 of the Indian Penal Code have been made out in this case. He submits that it is a clear case of an attempt to criminalize a civil dispute. He also submits that the facts alleged in the complaint filed by the present respondents, even if they are taken on its face value, are not sufficient to disclose commission of any offence and make out any criminal case against the present petitioner. 8. He submits that this is not a case where the petitioner, at the inception of the contract, induced the respondents fraudulently or dishonestly to part with the advance amount paid to him. He submits that since the respondents have also failed to honor their part of the contract by not giving the balance amount, the agreement could not be honored and a civil dispute arose between them. He submits that this is at best the case of mere breach of contract and as such it is a fit case to invoke the jurisdiction of this Court under Section 528 of the BNSS to quash the proceedings of Complaint Case No. 8/2024. He, therefore, prays for allowing the instant Criminal Petition and quash the proceedings of Complaint Case No. 8/2024 which is pending before the Court of Sub- Divisional Judicial Magistrate, (Sadar) Nalbari. 9. In support of his submissions, the learned counsel for the petitioner has cited following rulings: - i. Hriday Ranjan Prasad Verma & Ors. vs. State of Bihar & Anr. reported in (2000)4 SCC 168 ii. Satishchandra Ratanlal Shah vs. State of Page No.# 5/8 Gujarat & Anr. reported in (2019) 9 SCC 148 10. On the other hand, Mr. N. J. Dutta, the learned counsel for the respondent nos. 2 and 3 has submitted that in the instant case the petitioner at the very inception of the agreement with the respondent nos. 2 and 3 had intention to deceive them, therefore, it is a clear case of commission of offences under Section 403/406/420 of the Indian Penal Code. 11. He submits that though the facts involved in this case constitute a civil wrong, however, apart from being civil wrong, the criminal case is also made out against the petitioner. He submits that the petitioner intended at the very inception of the agreement to deceive the respondents/complainants, hence, the facts involved also fulfills the ingredients of offences alleged against him in the complaint filed by the petitioner. 12. He submits that said facts were taken into consideration by the Trial Court while taking cognizance of offence under Section 403/406/420 of Indian Penal Code. He submits that after receiving the advance amount, the petitioner avoided the respondents when the respondents tried to contact him regarding fulfillment of his part of contract which itself shows that he was having intention to defraud the respondents from the very beginning. He further submits that even the conduct of the petitioner in not appearing before the Trial Court even after receipt of summons indicates that he has intentionally duped the respondents of the advance amount of Rs.7,80,000/- which has been paid to him by the respondents. 13. The learned counsel for the respondents submits that the averments made in complaint petition clearly makes out the ingredients of offence under Section 403/406/420 of the Indian Penal Code against the present petitioner, Page No.# 6/8 therefore, he submits that this is not a fit case to invoke the inherent jurisdiction of this Court under Section 528 of the BNSS to quash the proceedings of Complaint Case No. 8/2024 and accordingly, he prays for dismissing the instant Criminal Petition. 14. I have considered the submissions made by learned counsel for both sides and have gone through the materials available on records. I have also gone through the rulings cited by learned counsel for the petitioner in support of his submission. 15. In the instant case, on a bare perusal of the complaint filed by the present respondents before the Trial Court, it becomes clear that there has been a business relationship between the parties and which is stated to be a cordial business relationship. It also appears that the present petitioner and respondent nos. 2 and 3 entered into an agreement for supply of 24 numbers of cattle at an agreed consideration amount of Rs. 13 lakhs. However, it appears that some dispute has arose between the parties and after taking advance payment of Rs. 7,80,000/- the cattle were not supplied by the petitioner as was promised. The fact of receipt of advance money has been accepted by the petitioner. However, it is his contention that due to non- payment of remaining amount against the agreed price of the cattle, the supply could not be made. 16. On perusal of records, it appears that the cause of action for the complaint filed by the respondent nos. 2 and 3 has been stated to have occurred on 07.01.2024, when the respondent no. 2 found the mobile phone of the petitioner switched off when he tried to contact him with regard to the advance money paid to the petitioner. On perusal of the materials on record, it is no doubt that a civil dispute has erupted between the parties but a mere Page No.# 7/8 breach of promise or agreement by either parties does not, ipso facto, constitute offences under section 403 section 406 or section 420 of the Indian Penal Code. 17. Mere mentioning of the words “dishonest misappropriation” in the complaint petition is not sufficient to constitute offence under the above- mentioned provisions of law unless the facts which constitute the ingredients of above-mentioned offences are clearly narrated in the complaint petition. However, in the instant case, apart from the statement that the petitioner has not supplied the cattle as promised after taking advance amount of Rs 7,80,000/- there is no indication to come to a conclusion at least on prima facie basis that the petitioner has converted the money for his own use. The only statement in the complaint petition is that on 07.01.2024, when the respondent no. 2 tried to contact the petitioner on his mobile phone, his phone was found to be switched off mode and thereafter, the respondent filed the above-mentioned complaint. 18. The necessary ingredients of the offence under Section 403 IPC, namely “dishonest intention” and “misappropriation” does not appear to be there in the instant case. The mere inability of the petitioner to return the advance money cannot give rise to a criminal prosecution of cheating unless the fraudulent or dishonest intention is shown right at the beginning of the transaction, which is not the case of the complainant. There is nothing to indicate on record that from the very beginning of the transaction, the petitioner intended to defraud the respondents, rather, the complaint petition clearly mentions that there was a cordial business relationship between the parties. Thus, the instant case appears to be a purely civil dispute, which does not warrant the initiation of a criminal prosecution against the Page No.# 8/8 petitioner. 19. Moreover, the Apex Court, in a catena of its judgments, has deprecated the practice of instituting criminal cases to settle civil disputes. As in the instant case, the averments made in the complaint petition by the respondents, even if they are taken on their face value and accepted in their entirety, do not constitute any offences by the present petitioner, hence, the Complaint Case No. 8/2024, filed by the respondent nos. 2 and 3 against the present petitioner, is liable to be quashed, though option of pursuing civil remedy against the petitioner shall remain open for the respondent nos. 2 and 3. 20. In view of the discussions made in the foregoing paragraphs, as well as reasons stated therein, the proceedings of criminal Complaint Case No. 8/2024, pending before the Court of learned Sub-Divisional Judicial Magistrate (Sadar) Nalbari is hereby quashed, and this criminal petition is, accordingly, allowed. JUDGE Comparing Assistant