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2006 DIGILAW 220 (MP)

Bank of Rajasthan Ltd. v. Panama Chemical Works

2006-02-07

S.C.VYAS

body2006
ORDER 1. This revision is directed against the impugned order dated 2nd May, 2002, passed by I Additional Sessions Judge, Indore in Criminal Revision No. 426 of 2000, wherein and whereby set aside the order dated 25.9.2000 passed by Judicial Magistrate First Class, Indore in Criminal Case No. 668 of 1999 and discharged the non-applicants of the charges under sections l20B, 407, 418 and 420 read with section 34 of the Penal Code. 2. The applicant Bank of Rajasthan through its Branch Manager Mr. B.M. Gupta had filed a complaint before the Court of JMFC, Indore against seven persons including the respondents No. 1 and 2 under sections 120B, 407, 418, 420 read with section 34 of the Penal Code on the allegations that accused No.1 Vijay Kumar Kothari is proprietor of accused No.2· concern. Accused No.3 is involved in a business of medicines at Kolkata and accused Nos. 4 and 5 are its directors. Accused No.6 is the Transport Company and accused No.7 is its proprietor. 3. The respondent No.1 had requested the applicant Bank to sanction· the credit loan facility of bill purchase to the extent of Rs. 1,20,27,820/-. The said facility was sanctioned by the Bank on 16.4.1996 to the respondent No.1. On the same day respondent No. 1 had sent bills and documents worth Rs. 60,02,250/- to the applicant Bank for collection. The goods were sent by respondent No.1 to Transport Company (accused No.6). The bills and transport receipts were sent to Kolkata Bank. Accused No.3 Swagatam Impact Pvt. Ltd. was to pay/deposit the said amount in the Bank and thereafter obtain the documents and builty. It was the duty of the transport company M/s. Tongya Road Service, Indore (accused No.6) not to deliver the goods unless the amount is deposited of the goods. But accused No.3 Swagatam Impact Pvt. Ltd. obtained the delivery of goods without making payment of the goods and thus cheated the applicant Bank. Thus all the accused persons in furtherance of conspiracy cheated and defrauded the applicant Bank of the huge amount. 4. The learned trial Magistrate took the cognizance for commission of the offence under section 420/34 of the Penal Code against' all the accused persons, including respondents No.1 and 2 herein. Respondents No. 1 and 2 preferred a revision before the I Additional Sessions Judge, Indore who vide impugned order, discharged them of all the offences. 5. 4. The learned trial Magistrate took the cognizance for commission of the offence under section 420/34 of the Penal Code against' all the accused persons, including respondents No.1 and 2 herein. Respondents No. 1 and 2 preferred a revision before the I Additional Sessions Judge, Indore who vide impugned order, discharged them of all the offences. 5. Shri S.L. Jain, learned counsel appearing for applicant Bank has argued that prima facie there was sufficient documentary material available on record to prove that respondents No. 1 and 2 have cheated the Bank, but, despite that the learned Additional Sessions Judge without appreciating the facts and documentary evidence in right perspective arrived at the wrong conclusion that there is no material against respondent No.1. He has further submitted that the criminal conspiracy committed by respondents No.1 and 2 was apparent on the basis of letters written to the Bank and in turn by the Bank. These documents have not been considered by the Sessions Judge. Relying on the judgment of the Supreme Court reported in the matter of Ram Narain Poply v. Central Bureau of Investigation [ 2003 CrLJ 480 ], learned counsel submitted that the ingredients of the offence of criminal conspiracy are available in the case in hand. In such cases direct evidence is rarely available to prove conspiracy and circumstantial evidence can only be relied on to draw prima facie conclusion in favour of the conspiracy. 6. Notices were issued to respondents but none had appeared on behalf of them. Therefore the matter is being decided only on the arguments advanced by learned counsel for applicant. 7. In para 8 of the impugned order, the learned Additional Sessions Judge has held that there is no evidence available on record to prove the prima facie case that the Bills and Builties which were submitted by respondents No.1 and 2 to the Bank were forged one. It also held that there is also no evidence to show that goods was not delivered to the transport company (accused No.6) and was not consigned to accused No. 3 Swagatam Impact. P. Ltd. It has also been held 'that if the goods was obtained by accused No.6 from accused No.3 without making payment to the Bank then present respondent (accused No.1 and 2) are only liable for civil action. P. Ltd. It has also been held 'that if the goods was obtained by accused No.6 from accused No.3 without making payment to the Bank then present respondent (accused No.1 and 2) are only liable for civil action. The learned Judge also arrived at the conclusion that there is no evidence to show that respondents No.1 and 2 had formed a criminal conspiracy with other accused persons. Thus on the basis of aforesaid conclusions, the revision was allowed and respondents No.1 and 2 were discharged of the offences. 8. In the matter of Ramnarain Poply (supra) in para 366, the apex court has held that, "the offence of cheating is made of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the person deceived delivers to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating, it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself." 9. Thus, when we consider the facts of present case in the light of observations made by apex Court in the above cited case, it is prima facie proved that respondents No.1 and 2 had written letters to the Bank on 11.6.1997 to the effect that they have established the contact with the drawees of the Bills and have assured that they will retire the bills within a month's period positively and therefore a prayer was made to represent the bills to the drawees for making the payment. Some other letters were also written by the respondents to the applicant Bank assuring for payment and requested time to time to hold the bills. But despite an these correspondence, nobody had made any payment. Thus the sequence of incident shows prima facie that respondents No.1 and 2 having no intention to repay the amount obtained by them. 10. Some other letters were also written by the respondents to the applicant Bank assuring for payment and requested time to time to hold the bills. But despite an these correspondence, nobody had made any payment. Thus the sequence of incident shows prima facie that respondents No.1 and 2 having no intention to repay the amount obtained by them. 10. Considering the matter from all angles, there appears a prima facie case against respondents No.1 and 2 and impugned order deserves to be quashed. 11. In the result, the revision is allowed. The impugned order dated 2.5.2002 of the learned Additional Sessions Judge is hereby quashed and set aside. The order dated 25.9.2000 of learned trial Magistrate is hereby· restored. Record of both the Courts be transmitted immediately for further proceedings.