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2005 DIGILAW 415 (JHR)

SHYAM SUNDAR JAIN v. STATE OF JHARKHAND

2005-06-14

HARI SHANKAR PRASAD

body2005
Judgment : ( 1 ) IN both the applications, facts alleged are common and, therefore, both the applications are being disposed of by this common order. ( 2 ) CR. Misc. No. 4897 of 2001 has been filed for quashing the order dated 7-7-2001 passed in Complaint Case No. 630 of 2001 whereby and where under the learned Judicial Magistrate, jamshedpur took cognizance against the petitioner under Sections 406/420 IPC, whereas Cr. Misc. No. 4899 of 2001 has been filed for quashing the order dated 5-7-2001 passed in Complaint case No. 626 of 2001 whereby and where under the learned Judicial Magistrate, jamshedpur took cognizance against the petitioner under Sections 420/406 IPC. ( 3 ) FACTS leading to filing of Cr. M. P. No. 4897 of 2001 are that the complainant of complaint case No. 630 of 2001 is the registered owner of a commercial trailer bearing registration No. HR-38d-7740 which is used for transportation of materials and the petitioner is a transporter of different firms/ companies of India who uses to transport by hiring vehicles from market and the accused No. 2 of the complaint petition is a proprietor of company of Nepal. On 12-2-2001 the local representatives of the petitioner approached the complainant for engaging his trailer for transportation of mild steel C. R. C. A. coils from Mumbai to biratnagar, Nepal. As the trailer in question at the relevant point of time was at Mumbai, the representative of the petitioner negotiated with the complainant for the job and freight charges were mutually fixed at the rate of Rs. 2100/- per M. T. Thereafter, the complainant instructed his trailer operator at Mumbai to place the trailer at the premises of the consignor at Mumbai. On 13-2-2001, 52,975 M. T. of Mild Steel C. R. R. C. A. coils were loaded on the vehicle of the complainant for transportation and delivery to the consignee in nepal. In this connection, an advance of Rs. 75,000/- on account of freight charges out of total freight charges was paid to the trailer operator and the operator after having loaded the material proceeded to Nepal on 13-2-2001. The rest freight charges were to be paid by the consignee on receipt of delivery of the materials. In this connection, an advance of Rs. 75,000/- on account of freight charges out of total freight charges was paid to the trailer operator and the operator after having loaded the material proceeded to Nepal on 13-2-2001. The rest freight charges were to be paid by the consignee on receipt of delivery of the materials. It is further stated that in course of travelling from Mumbai to Nepal, the trailer of the complainant met with an accident on 7-3-2001 in the State of Orissa and trailer was detained there till 10-3-2001 and as such, the trailer reached its destination on 21 -3-2001. It is also alleged in the complaint petition that consignee found shortage of 5945 Kg of materials, on which the trailer operator informed the complainant who accordingly approached the accused persons and offered invoice of the short fall consignment amounting to Rs. 96,666. 25 paise but the accused persons did not accept the same; rather the accused No1 instructed the accused No. 2 to detain the vehicle in nepal and to realize the damage from the complainant and the trailer has been detained by the accused No. 2 at his premises at Biratnagar in Nepal. It is also alleged in the complaint petition that complainant is still ready to pay the invoice value of the material to the accused persons but the accused No. 2 unauthorisedly has detained the trailer and the consignee i. e. accused No. 2 is illegally claiming huge sum of Rs. 11,92,258/- from the complainant on account of damage. It is also alleged that complainant on several occasions met the accused persons in order to settle the matter and even sent a pleader notice through lawyer on 11-5-2001 to the accused no. 1 demanding release of the trailer from the accused No. 2 and charging an amount of Rs. 1,06,326/- towards the daily invoice value of shortage of consignment, but the petitioner instead of complying with the requirement of the notice, he replied through his advocate by letter dated 25-5-2001 denying his liabilities and suggesting him to settle the matter of release of the trailer with the consignee-accused No. 2. ( 4 ) FACTS of Cr. M. P. No. 4899 of 2001 are more or less the same with slight variation in the quantity of coils tansported to biratnagar at Nepal. ( 4 ) FACTS of Cr. M. P. No. 4899 of 2001 are more or less the same with slight variation in the quantity of coils tansported to biratnagar at Nepal. In this case, 44,090 M. T. of Mild Steel C. R. R. C. A. coils were loaded but on arrival of consignment, consignee found shortage of 4080 Kg of materials. On getting this information, complainant approached the accused persons and offered invoice of the shortfall consignment amounting to Rs. 67,000/- but they did not accept the same. Here also, a lawyers notice was sent on 6-5-2001 to the accused persons for release of the vehicle. Here in the instant case, shortage of 4080 Kg of C. R. R. C. A. coil was detected and some of the consignment was found damaged and the matter was reported by the management of Mainawati Still Industries Pvt. Ltd. , biratnagar, Nepal to Area Police Station dhuhabi Sunsari, Nepal with respect to the shortage of consignment, which was loaded from Mumbai and the Nepal Police also sent information to the complainant and his driver for their appearance before the Area police Station Dhuhabi Sunsari, Nepal. ( 5 ) LEARNED counsel appearing for the petitioner in both the cases, submits that petitioner is not at all responsible for the detention of the vehicle by accused No. 2 at nepal because no cause of action has arisen at Jamshedpur or Mumbai. It is submitted that petitioner is the proprietor of Nirman road Carriers and the complainant is the owner of the trailer in question. It is further submitted that when shortages of 5945 Kgs of materials were found at Nepal, then accused No. 2 (consignee) did not release the vehicle and he is responsible for any loss. The consignment reached its destination at nepal known as Mainawati Steel Industries pvt. Ltd. Biratnagar, Nepal and the management of industries reported the matter to area Police Station, Dhuhabi Sunsari, Nepal with regard to the shortage of the consignment, which were loaded from Mumbai (Annexure-2) and the Nepal Police also sent information to the complainant and his driver for their appearance before the Area pdlice station, Dhuhabi, Sunsari, Nepal (Annexure-3)but the complainant did not appear there and the vehicle of the complainant was detained by the management of mainwati Steel Industries Pvt. Ltd. (accused no. 2) and, therefore, the accused No. 2 is responsible for the detention of the vehicle in question and this petitioner has got nothing to do with the detention of the vehicle. It is also submitted that Mainawati Steel Pvt. Ltd has also informed the petitioner that there was some shortage in delivery of the goods loaded on the truck and also informed the petitioner that if there is no possiblility of delivery of shortage goods then to pay Rs. 6,27,723/- for the shortage and damage of undelivered cargo as contained in Annexure 4 and the complainant by suppressing the real fact, has cooked up a totally false and fabricated story alleging therein that the petitioner instructed the accused No. 2 to detain the vehicle in Nepal. It was also submitted that from a plain reading of the complaint petition, no case either under Section 406 or Section 420 IPC is made out against the petitioner. It is further submitted that nothing was entrusted to the petitioner and as such no case under Section 406 IPC is made out and similarly the petitioner has not cheated the complainant and the petitioner never induced the complainant to deliver the property to him and as such Section 420 IPC is also not applicable. In fact the complainant did not approach the accused No. 2 for release of the vehicle. ( 6 ) A counter-affidavit has been filed on behalf of the opposite party No. 2. From the counter affidavit as well as statement of the learned counsel for the opposite party No. 2, it appears that cognizance has been taken after full-fledged enquiry and, therefore, no case is made out to interfere with the cognizance order. It is further submitted that after cognizance was taken a manufactured letter dated 14-7-2001 has been sent by the petitioner. It is further submitted that the opposite party No. 2 in fact entrusted the vehicle to the petitioner for taking the consignment to Nepal and the vehicle was entrusted to him for the purpose of his business and when consignee detained the vehicle in question at Nepal, the petitioner also came in collusion with the consignee for the purpose of defrauding the opposite party No. 2. It is further submitted that consignee had in fact sustained a loss of Rs. 96,000/- but he demanded a sum of Rs. 10,50,000/ -. It is further submitted that consignee had in fact sustained a loss of Rs. 96,000/- but he demanded a sum of Rs. 10,50,000/ -. although goods were duly insured and the opposite party No. 2 was ready to make good the loss but the demand being exorbitant, the consignee wrongfully detained the vehicle and confiscated the property. It was also pointed that Nepal Police never informed the opposite party No. 2 but in fact the complainant went to the office of accused no. 2 at Nepal several times to get the vehicle released but accused No. 2 demanded rs. 11,92,258/- as damages, although the damage suffered was only Rs. 96,000/- and this exorbitant demand was made by accused No. 2 in collusion with the petitioner. The petitioner in collusion with the accused no. 2 has caused wrongful loss to the opposite party No. 2 and, therefore, in the facts and circumstances of the case, the learned court below has taken cognizance in a proper manner and the cognizance order does not require any interference. ( 7 ) IN course of submission, learned counsel for the petitoner placed reliance upon 2004 (4) JLJR 162 : (2005 AIR Jhar. HCR 689 : 2005 Cri. L J 1811), wherein it was held that in a case of pure money claim by the complainant, a criminal prosecution under Section 406 IPC amounts to miscarriage of justice and entire criminal prosecution was quashed. The learned counsel further submitted that the instant case is similar to the case at hand because here also the case is based on money claim and there are no ingredients of Section 406 or Section 420 IPC and therfore, cognizance taken should be quashed. ( 8 ) FROM the submissions made above, it is clear that the truck in question with goods was detained in Nepal by accused No. 2 and not by this petitioner and allegation is that in collusion with accused No. 2 this petitioner is doing everything, in my opinion, no case under Section 406 or 420 IPC is made out. The vehicle loaded with consignment was detained at Nepal by consignee and accused No. 2 and this petitioner has no role to play and the matter is in between accused No. 2 and the complainant-opposite party No. 2 and in such a situation, no liability of this petitioner is there. The vehicle loaded with consignment was detained at Nepal by consignee and accused No. 2 and this petitioner has no role to play and the matter is in between accused No. 2 and the complainant-opposite party No. 2 and in such a situation, no liability of this petitioner is there. ( 9 ) IN that view of the matter both these quashing application are allowed and order dated 7-7-2001 passed in Complaint Case no. 630/2001 and 5-7-2001 passed in Complaint case No. 626/2001 are hereby quashed. Application allowed --- *** --- .