JUDGMENT K.N. Sinha, J.
1. The present application under Section 482 Cr.P.C. has been filed for quashing of the proceedings of complaint case No. 737/2002 pending before the Special Chief Judicial Magistrate, Agra, Smt Garima Jain v. R.K. Sharma under Sections 406/420 IPC Police Station New Agra, District Agra.
2. The brief facts giving rise to this application are that respondent No. 2 filed a complaint before the Special Chief Judicial Magistrate, Agra against the applicant alleging that the applicant had taken Rs. 50,000/-(Fifty thousand only) from respondent No. 2 for supply of goods but he supplied the goods worth Rs. 21.230/- (Twenty one thousand, two hundred thirty only) and misappropriated the amount of Rs. 28,770/-. For the remaining articles he assured that it will be supplied in due course. Inspite of several reminders on telephone the petitioner did not supply the articles and ultimately refused the same on 15.1.2002. After the refusal it was revealed that an amount of Rs. 28770/ (Twenty eight thousand seven hundred seventy only) was misappropriated Hence the complaint was filed. The Magistrate after recording the statement of complainant and witness summoned the applicant under Section 406/420 IPC.
3. It has been further pleaded that a perusal of complaint reveals that this is matter of sale and purchase transaction and supply of goods and the criminal courts should keep their hands off and the matter be decided by civil courts. In purchase and sale transaction nothing is entrusted and there was no element of cheating when the order was given. Thus, no offence under Section 406/420 IPC is made out hence the complaint is liable to be quashed.
4. The opposite party filed a counter affidavit alleging that applicant having dishonest intention fraudulently took Rs. 50,000/- for supply of goods but he sent goods for Rs. 21.230/ and misappropriated Rs. 28,770/- hence has been rightly summoned under Section 406/420 IPC. This is not a matter of sale and purchase but the applicant supplied the goods worth Rs. 21230/-and did not return the remaining entrusted amount. The applicant has intentionally played a fraud on opposite party No. 2 that is why he has not supplied the articles.
5. I have heard Sri Dharmendra Singhal learned Counsel for applicant, Sri Dilip Kumar Kesarwani learned Counsel for opposite party No. 2 and the learned AGA. Perused the affidavit and the counter affidavit.
6. So far as the factual position is concerned, there appears to be agreement between the parties for supply of the articles and paragraph 4 of the complaint is relevant. Para 4 of the complaint shows that the order was placed to the applicant and the articles worth Rs. 21.230/- were also sent through 'Arora Golden Transport ' and for the remaining articles, the applicant assured to send the same within a short period. There must have been a -fraudulent intention at the initial stage for cheating. In the present case it appears a matter of breach of agreement between the parties hence it can not be termed as 'cheating' or 'misappropriation'.
7. The opposite party No. 2 may seek the remedy available for enforcement of contract or for realizing the consideration paid.
8. Thus the complaint is not maintainable and is liable to be quashed. Consequently the complaint case No. 737/2002, pending before the Special Chief Judicia Magistrate, Agra Smt. Garima Jain v. Sri R.K. Sharma under Sections 406/420 IPC Police Station New Agra, District Agra, is hereby quashed.