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2004 DIGILAW 1106 (PAT)

Jain Finance Corporation v. State of Bihar

2004-10-14

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ORDER The present application under Section 482 of the Code of Criminal Procedure assails the order of cognizance dated 28.1.2002 under Sections 406, 420 and 120B of the Penal Code passed in Complaint Case No. 2292 (C) of 2001 by the Judicial Magistrate. 1st Class, Patna against both the petitioners. 2. Complaint Case No. 2292(C) of 2001 was instituted by the opposite party no.2 on 14.12.2001. The complaint averred that the opposite party no. 2 had handed over four bank drafts for a value of Rs. 45,000/- each dated 14.10.1991 along with cash amount of Rs. 20,000/- to accused no. 3 an agent of the petitioners, who is not petitioner in the present proceedings. The bank drafts were in the name of petitioner no. 1. The amount was paid as price for purchase of an air conditioned deluxe bus to be financed by the petitioner no. 1. Petitioner no. 2 is the proprietor of the said Finance-Company. The opposite party no. 2 at the request of accused no. 3 signed various papers also. The bus was never delivered to the opposite party no. 2. The bank drafts issued in the name of petitioner no. 1 were certified by the concerned bank to have been encashed. 3. Shri Navniti Prasad Singh appearing on bahalf of the petitioners submitted that as per allegations, the opposite party no. 2 entered into a contractual deal for the purchase of a Bus to be financed by the petitioners. The opposite party no. 2 thus parted with the money voluntarily and willingly. There was thus no inducement or dishonest intention at the inception as per the allegations themselves. In this view of the matter, no offence under Sections 406, 420 or 120B of the Penal Code could be made out. The allegations, even if true constituted a purely civil cause of action of breach of contract to deliver the vehicle after having received the payment. He relied upon a judgment of the Supreme Court reported in 2000 (4) see 168. Learned Counsel then submitted that as per allegations the amount was allegedly paid to the petitioners in October 1991 and the present complaint came to be instituted more than ten years thereafter in December 2001. The opposite party no. 2 hiving received finances from one M/s Jayshree Credit Corporation with the help of accused no. Learned Counsel then submitted that as per allegations the amount was allegedly paid to the petitioners in October 1991 and the present complaint came to be instituted more than ten years thereafter in December 2001. The opposite party no. 2 hiving received finances from one M/s Jayshree Credit Corporation with the help of accused no. 3 by transfer of the funds from the petitioners was in fact delivered a new Bus on 22.11.1991. Having defaulted in repayment, M/s Jayshree Credit Corporation seized the Bus in 1994 leading to the institution of Cr.W.J.C. No. 681 of 1994 by opposite party no. 2 before this Court for release of the same. The writ application came to be dismissed on 5.7.1995, copy where of was placed at Annexure 5 to the present application. The opposite party no.2 after seizure of his Bus of M/s Jayshree Credit Corporation instituted complaint case no. 58 of 1994 before the State Consumer Commission at Patna. The petitioners:' entered appearance and placed on record that the opposite party no. 2 has been financed the vehicle by M/s Jayshree Credit Corporation with whom he was litigating since 1993 for reasons of non-payment of installments. Learned Counsel for the petitioner took pains to point out that the stand of the petitioners and accused no. 3 in the Consumer Case no. 58 of 1994 was a part of the record of the present complaint case filed by the opposite party no. 2. This case no. 58 of 1994 then came to be dismissed in default on 16.4.2001 when the opposite party no. 2 as the Complainant failed to consecutively appear on four dates even while the petitioners were present on all dates as would be apparent from the order of the concerned court at Annexure 4 to the present application. The application for restoration of the same preferred by the opposite party no. 2 was likewise rejected on 20.6.2002. Revision Case no. 1219 of 2001 then preferred by him before the National Commission 'which who also rejected on 26.7.2002. It was thus submitted that the present complaint was filed only after the complaint case 58 of 1994 stood dismissed for default after the opposite party no. 2 had lost possession of the Bus to M/s Jayshree Credit Corporation for nonpayment of hire purchase instalments. It was thus submitted that the present complaint was filed only after the complaint case 58 of 1994 stood dismissed for default after the opposite party no. 2 had lost possession of the Bus to M/s Jayshree Credit Corporation for nonpayment of hire purchase instalments. The present prosecution was then instituted malafide to recover alleged money from the petitioners already utilized to purchase a. new vehicle from M/s Jayshree Credit Corporation. Learned Counsel made a brief reference to Annexures 3 and 3A to submit that the opposite party no. 2 in his own pen had consented that the payment given in October 1991 to the petitioners be transferred to M/s Jayshree Credit Corporation to be adjusted for purchase of the Bus by the opposite party no. 2 financed by the latter company. Learned Counsel thus submitted that the complaint was malafide, that it was an after thought and was an abuse of the process of Court in the aforesaid circumstances. 4. Shri Badri Prasad Singh appearing on behalf of the opposite party no. 2 submitted that the allegations constituted materials for investigation in a regular trial. The petitioners having wrongly retained the money of the opposite party no. 2 the purchase of a Bus by it from M/s Jayshree Credit Corporation was an entirely different matter. The dispute was not purely civil in nature for the reason that the petitioners had received moneys from the opposite party no. 2. Learned Counsel relied upon the decision reported in 1999 (3) see 259 (Rajesh Bajaj Vs. NCT). It was lastly submitted that Annexures 3 and 3A having been disputed in the counter affidavit filed in the present proceedings no reliance could be placed upon the same. 5. The exercise of Dowers under Section 482 of the Code of Criminal Procedure has been the subject of consideration on repeated occasions both by this Court as also the Supreme Court. The guidelines and parameters for the same commencing from AIR 1960 SC 866 (R. P. Kapoor Vs. State of Punjab) though 1992 (Suppl) 1 SCC 335 (State of Haryana Vs. Bhajan Lal) till (2004) 6 SCC 522 (State of Andhra Pradesh Vs. Golkunda Linga Swamy) stand well settled. Reference may usefully be made to the categorizatio m.1 J' in the Bhajan Lal case (supra) which has been quoted with approval on several occasions. The complaint would have to be read as a whole. Bhajan Lal) till (2004) 6 SCC 522 (State of Andhra Pradesh Vs. Golkunda Linga Swamy) stand well settled. Reference may usefully be made to the categorizatio m.1 J' in the Bhajan Lal case (supra) which has been quoted with approval on several occasions. The complaint would have to be read as a whole. If the complaint appears to be malafide, frivolous or vexatious, such a complaint would clearly fall within category (VII) of the Bhajan Lal case. This would therefore necessarily vary in its application from case to case. 6. In the present case, this Court finds that tile payments in question were made on 14.10.1991. Thereafter there was complete silence on part of the opposite party no. 2 till he instituted Complaint Case no. 58 of 1994 before the Consumer Forum. Even this prosecution came to be initiated after the vehicle of the opposite party no. 2 financed in 1991 itself by M/s Jayshree Credit Corporation came to be seized in 1993, the challenge to which was rejected by this Court on 5.7.1995 in Cr.WJC No.681 of 1994. This would assume importance in the background that the opposite party no. 2 did receive a new Bus from the 12tter Finance Company on adjustment of accounts. Complaint Case No. 58 of 1994 stood dismissed on 16.4.2001 for non-prosecution after several dates, when all the while the petitioners were present. The restoration petition also stood rejected on 20.6.2002. The revision before the National Commission was also rejected on 26.7.2002. It was only after complaint Case No. 58 of 1994 came to be dismissed that the opposite party no. 2 preferred the present complaint was on 14.12.2001. This Court, in the factual background finds the complaint to be inordinately delayed. No person of ordinary prudence would wait for ten years to initiate criminal prosecution for such sums of money paid by him and unlawfully retained by an alleged beneficiary. Even if recourse was to be had• to the Consumers Court, that by itself would not explain the failure to institute criminal prosecution as the opposite party no. 2 averred that the two would constitute separate proceedings The del2j in institution of a complaint case IS of considerable importance as held In _ AIR 1971 SC 66 (Khedu Mohton & Ors. Vs. State of Bihar). 2 averred that the two would constitute separate proceedings The del2j in institution of a complaint case IS of considerable importance as held In _ AIR 1971 SC 66 (Khedu Mohton & Ors. Vs. State of Bihar). The explanation given in paragraph 23 of the complaint petition that the filing of the case in the Court in the year 1994 and its pendency till 16.4.2001 caused delay in filing the complaint can hardly be considered as a reasonable or plausible explanation. This Court by reference to 1981 (13) Unreported Judgments (SC) 130 (K. N. Mishra Vs. Jiwaji University, Gwalior) would hold that it would not be expedient in the interest of justice that a complaint be laid against the petitioners after so many years. "The laying of a complaint at this belated stage would make the prosecution a veritable prosecution". It would not be the function of the court to cater to the acrimonious and revengeful attitude taken up by the parties and to advance their interest elsewhere. 7. In the aforesaid case of K. N. Mishra (supra) the services of the Appellant were terminated on 21.9.1967. The High Court on challenge, allowed the writ petition on 28.4.1970 setting aside the termination. The petitioner then filed a civil suit in 1970 for arrears of salary. The suit was decreed on 27.11.1972. Appeal by the University was dismissed by the High Court. Two years later on 29.7.1994 the University filed an application that a complaint be laid against the appellant for having made a false statement in the suit that he was not employed during the relevant period from 1.1.1968 to 9.6.1970. This application was made on 29.7.1974. It was dismissed for default on 12.7.1979. The restoration was allowed on 9.8.1979. On appeal by the appellant after his revision was rejected, the Supreme Court in paragraph 2 of the judgment proceeded to hold : "2 ......... We do think that it is not expedient in the interest of justices that a complaint should be laid against the appellant after so many years. We think .( that laying of a complaint at this belated stage would make the prosecution a veritable prosecution.......... We do think that it is not expedient in the interest of justices that a complaint should be laid against the appellant after so many years. We think .( that laying of a complaint at this belated stage would make the prosecution a veritable prosecution.......... It is not the function of the court hearing an application under Section 476 (Section 340 of the New Code) to cater to the acrimonious and vengeful attitude taken up by the parties and to advance their interest elsewhere .:..." 8. The reliance on the aforesaid judgment and the similarity in events lead this Court to hold that the present prosecution of the petitioners would clearly fall within category VII of the Bhajan lal case (supra) the proceeding is manifestly attended with malafide and was maliciously instituted due to private and personal grudge on account of the inability of the opposite party to pay the instalments of hire purchase to M/s Jayshree Credit Corporation leading to the seizure of the Bus and their desire now to recover the value of the Bus by abusing the process of law. 9. This Court would also accept the submission of the learned Counsel for the petitioners that even if the allegation be true, the delay in initiation of criminal prosecution be over looked, the allegation only constituted a civil cause of action in view of the law laid down in 2000 (4) see 168 (Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr.). The Supreme Court having held therein that mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time were the offence is said to have been committed. Therefore it is intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up the ;1romise subsequently such a culpable intention at the commencement cannot be presumed. This Court finds that in tile present case the complaint does not allege any mens rea or dishonest intention at the initiation. Mere failure to keep up the ;1romise subsequently such a culpable intention at the commencement cannot be presumed. This Court finds that in tile present case the complaint does not allege any mens rea or dishonest intention at the initiation. This would clearly fall within the first category d Bhajan lal case-the allegations even at their face value and accepted in entirety do not constitute any offence or make out a case. 10. This Court does not find any reason for applicability of the judgment reported in 1999 (3) SCC. 259 (Rajesh Bajaj Vs. State LCT of Delhi) relied upon by learned Counsel for opposite 'party no. 2. The crux of this decision would lie in paragraph 11 of the judgment which fundamentally distinguishes the present case on its facts. There can be no dispute with the broad proposition that the same offence or transaction can constitute both a civil and criminal wrong. 11. In the background of the aforesaid facts this Court cannot held but noticing the documents at Annexures 3 and 3A of the application under Section 482 Cr.P.C. under the signature of opposite party no. 2 confirming that the payments made to the petitioners as advance be transferred to M/ s Jayshree Credit Corporation. 12. In view of the aforesaid discussions this Court comes to the conclusion that the impugned order of cognizance dated 28.1.2002 and the entire proceeding in Complaint case No. 2292 (C) of 2001 against the present petitioners are vitiated in law and are clearly an abuse of the process of law. The same are accordingly quashed. The application stands allowed.