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Allahabad High Court · body

2001 DIGILAW 424 (ALL)

S. K. AGARWAL v. MANOJ DALMIA

2001-05-03

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE revisionist in all the above three revisions is the sales manager of Diamond Cement Company, Imlai, District Damoh in Madhya Pradesh. The opposite party No. 1 in revision Nos. 1023 of 1993 and 1024 of 1993 was appointed as sales organiser of the said company on 29-4-1988. He was also appointed on 1-10-1988 as clearing, storing and forwarding agent. The company vide letter dated 22-12-1990 directed the opposite party No. 1 to accept the amount from the dealers through drafts and cheques only and not in cash. The opposite party No. 1 in revision No. 1025 of 1993 is brother of opposite party No. 1 in other two revisions. ( 2 ) FROM April, 198 9/01/1991 about 1. 35 Matric tons of cement was supplied by the company to the opposite party No. 1. The said cement was sold by the opposite party No. 1. The F. I. R. s against the opposite party No. 1 were lodged by the revisionist on 24-4-1991 for offences under Section 409, I. P. C. alleging that he has misappropriated a sum of Rs. 57. 30 lacs of the company which was realised by him by the sales. The police investigated the matter and submitted final report on 2-10-1991. The learned A. C. J. M. , before whom the final report was filed on 18-11-1991 ordered for the rejection of the final report and that case be registered and that the complainant be summoned for cognizance on 4-12-1991. Thereafter, he recorded the statements of the complainant and other witnesses under Sections 200 and 202, Cr. P. C. and accepted the documents filed by them and by order dated 22-10-1992 summoned the opposite party No. 1 to stand trial for the offence under Section 409, I. P. C. Similar orders were passed regarding the other F. I. R. s in those cases. Against those orders, the opposite party No. 1 preferred Criminal Revisions Nos. 193 of 1992, 194 of 1993 and 91 of 1992 before the Sessions Judge, Jhansi. Criminal Revision No. 193 of 1992 and 194 of 1992 were allowed by common judgment dated 27-4-1993 and Criminal Revision No. 91 of 1992 was allowed by separate judgment of the same date and the summoning orders passed by the Magistrate have been quashed, hence, present revisions have been filed by the complainant. Criminal Revision No. 193 of 1992 and 194 of 1992 were allowed by common judgment dated 27-4-1993 and Criminal Revision No. 91 of 1992 was allowed by separate judgment of the same date and the summoning orders passed by the Magistrate have been quashed, hence, present revisions have been filed by the complainant. Since all these three revisions involve the same questions of fact and law, they are being disposed of by this common judgment. ( 3 ) I have heard Sri Manish Tiwari, learned counsel for the revisionist, Sri G. S. Chaturvedi, Senior Advocate for opposite party No. 1 and the A. G. A. ( 4 ) THE learned counsel for the revisionist firstly argued that the learned Sessions Judge, Jhansi has taken lots of pain in deciding the matter and discussed it at a very great length; that his approach in the matter is as if he is deciding the guilt of the accused and entered in the facts of the case; that the decision on the question of fact is not permissible in the exercise of power of revision under Section 397, Cr. P. C. It is more so, as the revisions were preferred against the summoning orders passed by the Magistrate and only the legality of the orders should have been examined. The learned Sessions Judge, Jhansi acted without jurisdiction in entering into the facts of the case and recording the findings that no offence has been made out. It has also been contended that the learned Sessions Judge has also referred to paper No. 16-A which is a letter, in the judgment which was not even on record and he has gone beyond the record for deciding these revisions; that, therefore, the orders of the learned Sessions Judge passed in revisions cannot be maintained and he has committed a gross error of law in discussing the facts and evidence of the case. ( 5 ) IT is further contended by Sri Manish Tiwari, learned counsel for the revisionist that certain other F. I. Rs were also lodged by the revisionist against the opposite party No. 1 and other persons. ( 5 ) IT is further contended by Sri Manish Tiwari, learned counsel for the revisionist that certain other F. I. Rs were also lodged by the revisionist against the opposite party No. 1 and other persons. In those F. I. Rs charge sheet was submitted by the police for offences under Sections 420, 406, 467 and 468, I. P. C. The Magistrate summoned the accused persons on the basis of the charge sheet and the Criminal Revision No. 379 of 1999 filed by the accused was dismissed by the High Court. In another case, charge sheet was submitted against the opposite party No. 1 and one Ramesh Kumar for offences under Sections 420, 406, 408, 463, 464 and 468, I. P. C. which was challenged by the accused in Criminal Misc. Application No. 568 of 1995, under Section 482, Cr. P. C. before the High Court and the same was dismissed by this Court on 22-8-1995; that the facts of this case are similar and, therefore, different view cannot be taken. ( 6 ) I have considered the arguments. Before examining the merits of the contentions, it may be mentioned that in this case proper orders were not passed by the Magistrate himself. The police after investigation of the case submitted final report. The learned Magistrate on the final report did not issue notice to the complainant to file protest petition. On the other hand, he rejected the final report, registered the case and summoned the complainant for taking cognizance in the matter. The learned Magistrate could have acted on the protest petition, if any, filed by the complainant against the final report. The learned Magistrate himself summoned the complainant and recorded statements under Section 200 and 202, Cr. P. C. and passed the order summoning the opposite party No. 1 to stand trial under Section 409, I. P. C. Proper procedure was not followed by him. ( 7 ) HOWEVER, coming to the merits of the revisions, the decisions of Criminal Revision No. 379 of 1999 and Criminal Misc. Petition No. 568 of 1995 referred to by the learned counsel for the revisionist does not appear material. In both these cases the charge sheets were submitted by the police. The fact of these cases are not before this Court to consider whether the allegations were similar. Petition No. 568 of 1995 referred to by the learned counsel for the revisionist does not appear material. In both these cases the charge sheets were submitted by the police. The fact of these cases are not before this Court to consider whether the allegations were similar. On the other hand, the present revisions are regarding offences under Section 409, I. P. C. whereas in above cases, the offences were different. Therefore, I cannot be guided by the decisions made in Criminal Revision and Criminal Writ by this Court. ( 8 ) IT is no doubt true that the learned Sessions Judge has entered into the fact to consider whether the offence is made out which is not permissible under law as the revisions were filed against the summoning order. He has, therefore, exceeded in the limits of the powers under Section 397, Cr. P. C. However, for this reason, the order of the learned Sessions Judge cannot be quashed and the facts are to be considered. ( 9 ) IN this case, the opposite party No. 1 was not an employee of the Diamond Cement Company. He was appointed as sales organiser, meaning thereby that he was working as an agent. He was also appointed as clearing, storing and forwarding agent. According to terms of the agreement, the commission was payable to him. The accounts are alleged to have been settled and a sum of Rs. 23. 37 lacs was found outstanding against opposite party No. 1. Learned counsel for opposite party No. 1 has argued that his amount towards commission and expenses is due against the company which has not been paid and false F. I. Rs has been lodged. Therefore, it is a dispute between principal and agent and is essentially a dispute of accounting. Therefore, there is total absence of mens rea and criminal offence of mis-appropriation is not made out. The dispute is of civil nature. ( 10 ) IT is contended that by letter dated 22-12-1990, the company directed the opposite party No. 1 to accept the amount from the dealers through drafts and cheques only and not in cash. This direction was not complied with. The dispute is of civil nature. ( 10 ) IT is contended that by letter dated 22-12-1990, the company directed the opposite party No. 1 to accept the amount from the dealers through drafts and cheques only and not in cash. This direction was not complied with. The breach of such direction by the agent does not amount to the commission of an offence under Section 409, I. P. C. It is more so, as admittedly the opposite party No. 1 replied to the letter that it is not possible to implement the direction in toto as huge amount of monies are outstanding against the buyers and no hard and fast rule can be imposed on them to pay the money by drafts and cheques. It has been argued that it is difficult to realise the money from the debtor and if debtor pays the money in cash, no body should refuse the cash and demand the drafts or the cheques. The breach of this direction does not amount to the commission of the offence under Section 409, I. P. C. ( 11 ) AFTER considering the circumstances and the facts of the case, I am of the view that there is dispute of accounting between master and servant. The agent cannot be harassed for such a dispute by resort to the criminal proceedings. The position would have been different if the opposite party had been an employee. ( 12 ) I, therefore, do not find any reason to interfere in the orders passed in the revisions by the Sessions Judge, Jhansi. All the three revisions are, accordingly, dismissed. Revisions dismissed. .