Vishwanath Singh v. Mohan Lal Bansal — 1981 DIGILAW 1115 (ALL)

JUDGMENT M. Wahajuddin, J. - The applicant, Vishwanath Singh, has prayed u/s 482 Code of Criminal Procedure for quashing the proceedings in Criminal Case No. 167 of 1978, Mohan Lal v. Puran Chand Criminal Case No. 167 of 1978 u/s 409/420 Indian Penal Code , pending in the Court of Sri R.L. Sharma, Special Judicial Magistrate Agra. 2. The complaint was lodged on the allegation that at the request of the Petitioner and co-accused Puran Chand Ms. Baishali Machinery Stores was appointed as authorised dealer of Annapurna Diesel engines by the complainant and the complainant delivered certain engines to the aforesaid firm and the accused issued cheques for the firm of the complainant but the same were not honoured. The complaint is Annexure 'A' to the application u/s 482 Code of Criminal Procedure. Paragraph 3 of the complaint recites that it was agreed that goods of the complainant shall remain in trust till the costs (sale proceeds) are cleared and paid upto the complainant else it shall be criminal breach of trust. It is further recited that the bills were sent along with the R. Rs despatched through the State Bank of India but the R. Rs were not taken against payment and ultimately on the request of the accused persons documents were sent directly and the accused persons took the consignments and issued a cheque No. 731306 dated 19-7-1976 for Rs. 5000- to the "complainant in the name of his firm duly signed by the accused No. 1. But the aforesaid cheque was not honoured. Thereafter the complainant sent several letters to the accused, who showed his inability to sent a draft for Rs. 5000/- vide his letter dated 23-8-1976. There was no response to the request of the complainant about the delivery of engines or their sale proceeds. Ultimately a notice dated 25-10-1977 was sent. The complainant also went to the city of the accused persons in December, 1977 and asked for the sale proceeds of the engines amounting to Rs. 9281. 70 paise, and the complainant was told that the sale proceeds have been expended for their own use. 3. A number of grounds have been urged in support of the prayer for quashing the criminal proceedings. 9281. 70 paise, and the complainant was told that the sale proceeds have been expended for their own use. 3. A number of grounds have been urged in support of the prayer for quashing the criminal proceedings. It has been submitted that the Magistrate directed the record to be consigned in the absence of the complainant on 4-9-1978 but later he revived the proceedings, which he could not do. It is also submitted that any offence u/s 409 Indian Penal Code is not disclosed. I have already mentioned the main allegations in the complaint. Statements u/s 200 Code of Criminal Procedure and 202 Code of Criminal Procedure had been recorded by the Magistrate before summoning the applicant and co-accused Puran Chand. There is an annexure, being annexure 'A' to the supplementary affidavit of the Petitioner. It is a letter and acknowledgement addressed to M/s. Traco International, Nanuhai, Agra i. e. the firm of the opposite party. In this annexure there is a statement by way of acknowledgement as follows: I again assure the partners of M/s. Traco International to receive the proceeds etc. on account of property entrusted to my firm. 4. This letter has been written by the co-accused Puran Chand. It would appear that the present Petitioner as well as Puran Chand had earlier also filed an application u/s 482 Code of Criminal Procedure before the Court. It was disposed of by Hon'ble Mr. Justice P.N. Bakshi vide his judgment dated 22-4-1980 observing that it cannot be said that the prosecution of the applicant is an abuse of the process of the Court. I find that after the judgment was pronounced, there are no new developments. Reliance was placed upon the case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh and Others, AIR 1975 SC 1002 . In that case the position was different. The earlier application was rejected on the ground that evidence was yet to be led and it was not desirable to interfere with the proceedings at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and a fresh application was moved, in such circumstances. The earlier application was rejected on the ground that evidence was yet to be led and it was not desirable to interfere with the proceedings at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and a fresh application was moved, in such circumstances. The following observations made in the case of Superintendent and Remembrancer, West Bengal (supra) are important: The facts and circumstances obtaining at the time of the subsequent application of Respondents No. 1 and 2 were clearly different from what they were at the time of the earlier application of the first Respondent because, despite the rejection of the earlier application of the first Respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order dated 12th December, 1968, the High Court proceeded to consider the subsequent application of Respondents No. 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction u/s 561-A. 5. The above pronouncement is an authority simply for the proposition that in the changed circumstances on the situation prevailing at the time of subsequent application in suitable cases inherent powers can be exercised. The general principle of law is that the same matter cannot be agitated again and again, rather that may itself amount to an abuse of process of Court. Whatever grounds were open could be taken when the earlier application u/s 482 Code of Criminal Procedure was preferred. There is not changed circumstance subsequent thereto. In the case of Superintendent and Remembrancer, West Bengal (supra) actually the earlier application was not disposed of on merits. The observation was that the question of facts cannot be entered into at this stage. In the present case Hon'ble Mr. Justice P.N. Bakshi has considered the aspect whether the Criminal proceedings pending before the lower court constitutes any abuse of process of law. The observation made is 'Prima facie these allegations make out a case against the applicant'. The observation was that the question of facts cannot be entered into at this stage. In the present case Hon'ble Mr. Justice P.N. Bakshi has considered the aspect whether the Criminal proceedings pending before the lower court constitutes any abuse of process of law. The observation made is 'Prima facie these allegations make out a case against the applicant'. When that is the position, it will rather be an abuse of the legal process to reconsider the same facts which were averred or which could have been averred but were not averred when the earlier application was filed. So far as the subsequent developments are concerned, a copy of the order sheet of the lower court has been annexed. It would appear that the proceedings in the Magristrate's Court remained stayed in pursuance of the stay order granted on the earlier application u/s 482 Code of Criminal Procedure. For the first time on 9-6-1980 the result of the decision in the earlier application was filed before the Magistrate, who fixed 24-6-1980 and on 24-6-1980, as the accused persons were absent summons were issued to them for 22-7-1980. On that date adjournment application was moved from the side of the accused persons and the case was adjourned to 8-9-1980. The complainant took only one adjournment on that date and thereafter again an application was filed by one of the accused persons here u/s 482 Code of Criminal Procedure and another stay order was obtained. In these circumstances, I do not find that any new situation prevailes and I, therefore, hold that actually it would amount to defeat of the procedure of law if same matters are agitated again and again. In the end it is submitted that some money was paid on 7-11-1978 by a draft. That would not make any difference, when such ground could have been taken in the earlier application, which was disposed of in April, 1980. 6. In the result the application u/s 482 Code of Criminal Procedure is, therefore, dismissed. The stay is vacated.