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2006 DIGILAW 467 (AP)

Revensasiddesehwara Traders v. State Of A. P.

2006-04-04

P.LAKSHMANA REDDY

body2006
( 1 ) PETITION under Section 482 of Crl. P. C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash the order dt. 4-11-03 in Crl. R. P. No. 43/02 on the file of the IV Additional Sessions Judge, Warangal and discharge the petitioners in cc. No. 490/01 on the file of the I Additional Judicial First Class Magistrate. , Warangal. ( 2 ) THIS Criminal Petition is filed under Section 482 Cr. P. C. to quash the order dated 04. 11. 2003 in Crl. R. P. No. 43 of 2003 on the file of the IV Additional Sessions Judge, Warangal and to discharge the petitioners in C. C. No. 490 of 2001 on the file of the I Additional Judicial Magistrate of First Class, Warangal. ( 3 ) THE petitioners 1 and 2 herein are A-1 and A-2 in C. C. No. 490 of 2001 on the file of the I additional Judicial Magistrate of First Class, Warangal. Hence, they will hereinafter be referred as A-1 and A-2 in this order. ( 4 ) THE relevant facts in brief are as follows:"the second respondent-firm herein filed a private complaint against the present petitioners and one K. Narasaiah arraying them as A-1 to A-3 alleging that the complainant is a registered firm engaged in doing business of purchasing food grains from all over the country and supplying the same to M/s. Shalimar Pellet Feeds Ltd. , Calcutta and M/s. Moti Agri Products, Calcutta and also other customers. A-1 contacted the complainant on phone on 31. 01. 1999 and offered to supply 30 BCX type wagons of maize viz. 16,800 bags to the parties at Shalimar Railway station in Calcutta on the terms that A-1 shall keep the stocks in a deliverable state at their place by loading into wagons @ Rs. 505/- per quintal (Ex Davangere) and on handing over the railway receipts (for short r. Rs ) to the complainant through their agent at Warangal, the complainant shall pay Rs. 30,00,000/- together with railway freight charges of Rs. 13,94,650/- and further the balance amount shall be paid after delivery of stocks and the complainant agreed to the said offer on such terms on phone and instructed that the stocks must be delivered in the first week of February, 1999 itself. They concluded their contract on phone on 31. 01. 30,00,000/- together with railway freight charges of Rs. 13,94,650/- and further the balance amount shall be paid after delivery of stocks and the complainant agreed to the said offer on such terms on phone and instructed that the stocks must be delivered in the first week of February, 1999 itself. They concluded their contract on phone on 31. 01. 1999. As per the terms of the contract, A-1 should get the maize stock loaded at davangere in deliverable State and consign the same to the complainant at the Shalimar railway Station in Calcutta and the bill of purchase of stocks should be given in the name of complainant along with R. Rs. duly endorsed in favour of the complainant enabling them to take delivery of the consignments at Shalimar Railway Station, Calcutta. In pursuance of the said contract, A-1 sent the common credit bill bearing No. 224, dated 02. 02. 1999 containing the names of four consignors including A-1 and A-2 and two others viz. M/s. K. Iqbal and Company, a firm carrying on business at Santhebennur, Shimoga District and M/s. Sri Lingeswara agencies, a firm carrying on business as RMC yard Davangere. Although the names of four persons are mentioned in the column meant for particulars of consignors and the details of goods consigned, the bill has been issued by A-1 firm only, in the name of the complainant. The worth of goods consigned is Rs. 83,87,120. 80 ps. and the railway freight charges are rs. 13,94,940/ -. The agent of A-1 by name Sri Narsaiah on 04. 02. 1999 brought the said bill and r. Rs. of all the four consignors separately endorsed in favour of the complainant for the entire consignment to Warangal. As agreed upon the complainant handed over the D. Ds for rs. 30,00,000/- and also for Rs. 13,94,940/- and the balance amount was agreed to be paid one week after taking the delivery of the consignment firm at Shalimar Railway Station, Calcutta. Thus, on 04. 02. 1999 the consignment is deliverable state and on delivery of R. Rs together with the bill, the ownership of the property is passed on to the complainant. 13,94,940/- and the balance amount was agreed to be paid one week after taking the delivery of the consignment firm at Shalimar Railway Station, Calcutta. Thus, on 04. 02. 1999 the consignment is deliverable state and on delivery of R. Rs together with the bill, the ownership of the property is passed on to the complainant. Later, the complainant went to Calcutta and after contacting their customers to whom the stocks were sold by them, the complainant approached Shalimar Railway Station authorities to ascertain as to whether rake is reached, but surprisingly the complainant learnt that one person. M/s. Bengani Food products Pvt. Ltd. , Calcutta, obtained interim stay order from the High Court of Calcutta not to deliver the stocks to the complainant and hand over the entire consignment of 30 boxes of maize to the receiver appointed by the High Court. His enquiries revealed that the very same stock of 30 boxes of maize, in fact was sold earlier to M/s. Bengani Food Products Pvt. Ltd. by a-1 and A-2 @ Rs. 445/- per quintal and since there is a rise in the market, the accused with dishonest intention to get wrongful gain sold the same to the complainant @ Rs. 505/- per quintal. Further, the accused also made available of the copies of R. Rs. to M/s. Bengani Food products Pvt. Ltd. which enabled them to get orders from High Court. The complainant having parted with huge moneys of Rs. 43,94,650/- including freight charges infavour of A-1 and having in possession of original R. Rs. , contacted the accused from Calcutta about the serious fraud played upon them. A-1 went on making some evasive answers, without conveying definite and correct message to M/s. Bengani Food Products Pvt. Ltd. The complainant believed and expected that the accused would say that the said entire consignment is the only transaction and would heavily come down upon M/s. Bengani Food Products for their creating hurdles to take delivery of stocks. But, A-1 and A-2 who came to Calcutta, were not able to command and on the other hand, they revealed that, in fact, the stocks were sold earlier to M/s. Bengani Food Products Pvt. Ltd. and therefore requested the complainant to deliver the original R. Rs. to them. But, A-1 and A-2 who came to Calcutta, were not able to command and on the other hand, they revealed that, in fact, the stocks were sold earlier to M/s. Bengani Food Products Pvt. Ltd. and therefore requested the complainant to deliver the original R. Rs. to them. Meanwhile, in exercise of their exclusive ownership rights over the said maize stock, the complainant moved the high Court of Calcutta to vacate the stay orders relating to the consignment, as the same was intended for them and they have paid part of the consideration and freight charges and ownership has been passed on to them on 04. 02. 1999 by the consignor. The High Court was pleased to order that the entire property be kept in the exclusive possession of receiver in separate godown till further orders. When the complainant was pursuing his legal remedies to get the consignment delivered to him, A-1 gave letter to him on 12. 02. 1999 coming out with real fraud played upon him stating that in fact consignment was sold to M/s Bengani Food Products Private Limited and the accused suppressing the said fact sold the same to the complainant. Thus, it has become very clear that A-1 to A-3 knowingly made false and incorrect representation that the consignment of 30 boxes maize stock which is in deliverable state is free from charges and induced the complainant to part with demand drafts for Rs. 43,94,650/- and ultimately the consignment was made available to a third party. At the instance of A-1, A-2 and M/s Begani Food Products Private Limited, the complainant was forced to withdraw the case filed by them in the high Court of Calcutta. The accused who are under obligation to discharge their commitment to make the consignment available, have not only failed, but also made available the copies of R. Rs. to the third party enabling them to get orders from the High Court and this act of making false representation with dishonest intention to enrich over night and to make the copies of sale papers available to third parties constitute criminal breach of trust. to the third party enabling them to get orders from the High Court and this act of making false representation with dishonest intention to enrich over night and to make the copies of sale papers available to third parties constitute criminal breach of trust. " ( 5 ) IT is further pleaded in the complaint that the complainant spent 10 days at Calcutta, leaving their active business at Warangal, and having already suffered loss for not doing business, with a view to get back the huge moneys which are locked up in the dubious deal by the accused without prejudice to their rights, have handed over the R. Rs. to M/s Bengani Food Products private Limited through the accused duly endorsing the same and look the money of rs. 43,94,650/ -. In fact, the complainant would have get profit of Rs. 4,00,000/- had the transaction was materialized without hurdles. Apart from that they suffered loss of Rs. 80,000/- in their business for being held up at Calcutta away from their place and also suffered loss of rs. 1,00,000/- towards demand draft charges and other expenses including the expenses incurred in pursuing the matter in the High Court of Calcutta. Hence, the accused are liable to be punished according to law. ( 6 ) THE learned Magistrate forwarded the said complaint to the police for investigation under section 156 (3) Cr. P. C. and the same was registered as Cr. No. 75 of 1999 of Police Station, mills Colony, Warangal against A-1 to A-3. The inspector of Police, Mills Colony on 11. 06. 2001 filed a memo in the Court of I Additional Judicial Magistrate of First Class, Warangal to the effect that the case was referred being of civil nature . The first respondent filed protest memo. ( 7 ) IN pursuance of the said memo, the learned magistrate recorded the sworn statement of the complainant on 27. 08. 2001 and took the case on file in C. C. No. 420 of 2001 for the offences punishable under Sections 409 and 420 I. P. C. and issued process to the accused. A-1 and A-2 after their appearance filed an application seeking discharge contending that the matter is of civil nature and no protest petition was filed by the complainant. 2001 and took the case on file in C. C. No. 420 of 2001 for the offences punishable under Sections 409 and 420 I. P. C. and issued process to the accused. A-1 and A-2 after their appearance filed an application seeking discharge contending that the matter is of civil nature and no protest petition was filed by the complainant. The learned magistrate dismissed the said application against which A-1 and A-2 filed revision before the sessions Judge, Warangal who took the revision of file as Crl. R. P. No. 43 of 2003 and made over the same to the IV Additional Sessions Judge, Warangal. The learned IV Additional sessions Judge after due hearing, dismissed the revision observing that the material on record on ex-facie consideration, it cannot be stated that a criminal complaint against the revision petitioners can not be entertained nor ca it be said that cognizance of offence taken against the revision petitioners cannot be entertained nor can it be said that cognizance of offence taken against the revision petitioners was bad merely because the transaction in question has a profile of a civil dispute and that the allegations in the complaint did not make out suppression of earlier sale by the petitioners to a party at Calcutta without knowledge of the complainant and thereafter the same consignment was sold through the complainant. ( 8 ) THEREAFTER, A-1 and A-2 approached this Court by way of this petition under Section 482 Cr. P. C contending that the order of the Curt below is contrary to facts of the case and law and both the courts below failed to appreciate the fact that there was no element of criminal intent at the time of contract between the accused and the complainant. The Courts below ought to have appreciated that the contract between the accused and the complainant was cancelled at par on 12. 02. 1999 at Calcutta and the complainant received back the entire amount of Rs. 43,94,650/- an in turn handed over the R. Rs. to M/s Bengani Food Products Private Limited. The Courts below erred in not discharging the accused when there did not exist any contract or fraudulent representation between the accused and the complainant and the complainant in order to avenge the accused had filed the private complaint to harass and extract illegal moneys from them. to M/s Bengani Food Products Private Limited. The Courts below erred in not discharging the accused when there did not exist any contract or fraudulent representation between the accused and the complainant and the complainant in order to avenge the accused had filed the private complaint to harass and extract illegal moneys from them. The Courts below erred in not discharging the petitioners and thereby facilitated the complainant to appease his anger and vengeance by starting proceedings in criminal courts, which is against law. The courts below failed to appreciate that the proper remedy for the complainant was a civil suit against the petitioners had the complainant really been subjected to financial loss and damages. The Courts below failed to see that the complainant had withdrawn the civil cases filed against the petitioners, attempted to achieve the same in a fresh round of litigation in criminal proceedings and that there was no fresh demand from the complainant to supply the material at the same old contracted rate of maize. The Courts below erred in not discharging the petitioners and failed to appreciate the criminal proceedings cannot be used as a means of redressing civil wrongs or for recovering the civil debts, in the absence of express provision to that effect. The Courts below failed to appreciate that if the dispute is of purely civil nature, the courts cannot allow the parties to get the dispute settled in a criminal court and also failed to appreciate the absence of criminal intent on the part of the petitioners at the time of contract with the complainant and mere failure at a later date to perform the contract would not amounts to a criminal offence. The Courts below failed to see that when a criminal case arose out of a civil transaction between the parties and civil suit compromised and withdrawn, the f. I. R. itself in respect of the same dispute can be quashed. The Courts below failed to see that there was no concluded contract between the petitioners and M/s Bengani Food products private Limited, Calcutta as on the date of contract with the complainant. Hence, the allegation that the consignment marked for Bengani Food Products Private Limited was sold to the complainant is false and incorrect. The Courts below failed to see that there was no concluded contract between the petitioners and M/s Bengani Food products private Limited, Calcutta as on the date of contract with the complainant. Hence, the allegation that the consignment marked for Bengani Food Products Private Limited was sold to the complainant is false and incorrect. The Courts below failed to see that only in view of the perishable nature of the consignment and due to the arm twisting tactics adopted by M/s. Bengani Food Products Private Limited against the petitioners, the entire market committee of food grains sat and mediated between the petitioners, the complainant and the said M/s. Bengani Food Products Private Limited and settled the matter amicably. The Courts below failed to see that in the presences of the complainant, M/s. Bengani Food Products Private limited, the petitioners and the entire market committee of food grains, the contract between the petitioners and the complainant was cancelled at par as per the minutes of the meeting dated 12. 02. 1999 and the complainant had signed the said minutes in acknowledgement of the same and in view of the compromise reached on 12. 02. 1999 the complainant is estopped from filing the criminal complaint against A-1 and A-2. It is further pleaded that the place of contract and shipment was at Davangere at Karnataka and the proceedings at Warangal is nothing but abuse of process of law to harass and coerce the petitioners to come for a settlement. The courts below failed to see that the complaint lacks the essential ingredients of a criminal intent at the time of contract with the complainant as there was no privity of contract between the petitioners and the said M/s. Bengani Food Products Private Limited. The Courts below failed to appreciate the report of the investigating officer that the dispute inter-se the petitioners and the complainant is that of civil nature. During the course of hearing, the learned counsel for the petitioners-accused reiterated the contentions raised in the grounds of the petition. He submitted that as on the date of contract between the complainant and the accused, there was no concluded contract with M/s. Bengani food Products Private Limited, Calcutta and that as the complainant offered reasonable price the accused agree to sell the goods and duly issued invoice and bill in the name of the complainant and also endorsed R. Rs. He submitted that as on the date of contract between the complainant and the accused, there was no concluded contract with M/s. Bengani food Products Private Limited, Calcutta and that as the complainant offered reasonable price the accused agree to sell the goods and duly issued invoice and bill in the name of the complainant and also endorsed R. Rs. in favour of the complainant to enable them to take delivery of the stock at Calcutta Railway Station and therefore no dishonest intention can be attributed to the accused and that the accused are no way responsible for the subsequent acts committed by M/s. Bengani Food products Private Limited, Calcutta and that on the date of entering into contract with the complainant, they never anticipated that M/s. Bengani Food products Private Limited, Calcutta would act in the manner in which the act subsequent to the dispatch of the consignment in favour of the complainant. He further submitted that at any rate, the complainant compromised the matter and received back the amount and endorsed the original R. Rs. in favour of M/s. Bengani Food Products Private Limited, Calcutta and after having entered into compromise and received back the money, it was not open for the complainant to initiate criminal proceedings against A-1 and A-2. ( 9 ) ON the other hand, the learned counsel for the second respondent contended that the accused deliberately did not disclose the fact that the same stock has already been agreed to be sold to m/s. Bengani Food Products Private Limited, Calcutta @ Rs. 445/- per quintal and that after the prices are increased the accused deliberately concealed the said fact and sold the same stock to the complainant @ Rs. 505/- per quintal and that dishonest concealment of fact is also a deception within the meaning of Section 415 of I. P. C. and therefore it is a clear case of cheating of the complainant by the accused. He further submitted that even after the goods were dispatched and R. Rs. were delivered to the complainant, the copies of said R. Rs. were supplied to M/s. Bengani Food Products Private Limited, Calcutta and those copies of R. Rs. He further submitted that even after the goods were dispatched and R. Rs. were delivered to the complainant, the copies of said R. Rs. were supplied to M/s. Bengani Food Products Private Limited, Calcutta and those copies of R. Rs. enabled the m/s. Bengani Food Products Private Limited, Calcutta to approach the High Court and to obtain stay for delivery and the said conduct of the accused also amounts to cheating within the meaning of Section 415 IPC and hence it cannot be said that the facts mentioned in the complaint do not disclose the offence of cheating. He further submitted that the trial Court and also the revision appellate Court dismissed the petition filed for discharge concurrently holding that the facts of the complaint disclose an offence of cheating and hence this Court cannot entertain an application to set aside the orders passed in the revision by the Sessions Court and on that ground also the petition is liable to be dismissed. In support of his contention, the learned counsel relied upon the decision of the Apex Court in Jagir Singh v. Ranbir Singh and another ( AIR 1979 SC 381 ) wherein the Apex Court held that revision not to be entertained by both the high Court and Sessions Judge and the learned Sessions Judge refused to interfere with the order of Magistrate, the High Court has no power to set aside the order of the magistrate in view of the bar under Section 397 (3) Cr. P. C. and that the said bar cannot be circumvented by treating the revision application as directed against the order of the Sessions judge. ( 10 ) DURING the course of reply, the learned counsel for the petitioners-accused submitted that the petitioners-accused filed revision before the learned Sessions Judge against the orders of the learned magistrate and this application is filed under Section 482 Cr. P. C. to quash the proceedings and that the High Court has got every power to quash the proceedings if it is satisfied that it is an abuse of process of law and the powers of the High Court are unfettered and that merely because second revision is not maintainable, it cannot be said that the High court in its exercise of inherent powers under Section 482 Cr. P. C. cannot quash the proceedings to prevent the abuse of process of law. P. C. cannot quash the proceedings to prevent the abuse of process of law. He further submitted that though in the prayer column it is prayed for setting aside the orders of the Sessions Judge passed in the revision petition it need not be taken into consideration as the petition is filed under Section 482 cr. P. C. to quash the proceedings and that this Court has power to ignore the relief prayed for and to grant appropriate relief in order to prevent the abuse of process of law. He further submitted that in the instant case there is clear abuse of process of law by conversion of a civil matter into criminal matter in order to pressurize the petitioners-accused to make alleged loss on account of transaction and further no part of the cause of action took place within the jurisdiction of Andhra Pradesh and that the alleged deception is only at Devanagere in karnataka State and the present complaint is filed in Warangal District in order to harass the accused who are residents of Devanagere in Karnataka State and to extract some more money from them and that when such abuse of process of law is brought to the notice of Court, this court cannot refuse to act on the simple ground that the discharge petition was rejected and the revision petition filed by the petitioners-accused was dismissed by the Sessions Judge. In support of his contention, the learned counsel relied upon a decision of the Apex Court in jitender Kumar Jain v. State of Delhi and Others ( (1998) 8 SCC 770 ) wherein the Apex Court held that the High Court has got power to quash the proceedings under Section 482 Cr. P. C. irrespective of the fact that the revision petition filed by the petitioner before the Sessions Court was dismissed. P. C. irrespective of the fact that the revision petition filed by the petitioner before the Sessions Court was dismissed. He also relied upon a decision of this Court in Vijay Prakash Vijay Varghe and another v. State of A. P. and another (2003 (2) ALT (Crl.) 534 (A. P.) wherein this Court held that to constitute an offence of cheating it is necessary to show that the accused had fraudulent or dishonest intention at the time of making the promise and if there is no allegation in the complaint that the accused had dishonest intention i. e. deception at the time of making the promise, the allegations do not attract the offence punishable under Section 420 I. P. C. ( 11 ) THE points that arise for determination in this application are: 1) Whether the criminal proceedings initiated against the petitioners-accused are liable to be quashed? 2) If so, whether this Court has got power to quash the proceedings before the trial Court when both the trial Court and revision Court refused to discharge the petitioner-accused on an application filed by the petitioners-accused? 3) To what relief? ( 12 ) POINT No. 1: as seen from the complaint, the offences alleged against the petitioners are the offences punishable under Sections 409 and 420 I. P. C. It is also not disputed that the magistrate forwarded the complaint to the police and the police after due investigation referred the case as of civil nature . No new facts have been brought to the notice of the Court and the Court after recording the sworn statement took the case on file. In the said sworn statement it is stated that the accused agreed to supply maize of 17,000 quintals @ Rs. 505/- per quintal to be delivered as Shalimar Railway Station, Calcutta so as to enable the complainant to deliver the same to his customers at Calcutta and that as per the terms of the contract the accused consigned the goods to Shalimar Railways Station and issued original invoice together with R. Rs. duly endorsing in favour of the complainant and received Rs. 30,00,000/- towards the part of sale price together with freight charges and sent the original R. Rs. and invoices to the complainant at Warangal and subsequently the goods were sent to Calcutta to be delivered at Shalimar railway Station. duly endorsing in favour of the complainant and received Rs. 30,00,000/- towards the part of sale price together with freight charges and sent the original R. Rs. and invoices to the complainant at Warangal and subsequently the goods were sent to Calcutta to be delivered at Shalimar railway Station. It is further stated therein that when they went to Shalimar Railway Station along with documents to take delivery, they came to know that M/s. Bengani Food Products private Limited, Calcutta approached the High Court and obtained interim orders directing not to deliver the stocks and to keep the stock in the custody of receiver, and that the complainant contacted the accused at Calcutta and A-1 and A-2 came to Calcutta and told him that in fact, earlier to the transaction, A-1 and A-2 had entered into contract with M/s. Bengani Food products Private Limited, Calcutta at a lesser price and that they were compelled to give the stock to M/s. Bengani Food Products Private Limited, Calcutta only, and then the complainant understood the real fraud played by the accused with them for getting wrongful gain as the complainant quoted higher price at Rs. 505/- per quintal and that A-1 and A-2 insisted the complainant instead of stock. It is further stated that at the instance of A-1 and A-2 they have delivered the original R. Rs. to M/s. Bengani Food Products Private Limited, Calcutta and that since A-1 and A-2 insisted the complainant to give up the plea and as A-1 and A-2 had already made available the copies of original R. Rs. to M/s. Bengani Food Products Private Limited, calcutta and since A-1 and A-2 made it clear that they earlier sold the stock to other party, the complainant compelled to give their documents as the place is far away from the place of the complainant and the matter is locked up in litigation and therefore the accused are liable for punishment. On such sworn statement, the learned magistrate took the case on file against the accused for the offences punishable under Sections 409 and 420 I. P. C. So far as Section 409 i. P. C is concerned, it is not stated as to how the ingredients of Section 409 I. P. C. are established in this case. On such sworn statement, the learned magistrate took the case on file against the accused for the offences punishable under Sections 409 and 420 I. P. C. So far as Section 409 i. P. C is concerned, it is not stated as to how the ingredients of Section 409 I. P. C. are established in this case. Even if the entire allegations made in the complaint and also in the sworn statement are believed as true, it cannot be said that the essential ingredients of Section 409 I. P. C. are made out. As per Section 409 I. P. C. whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property shall be punished under this section. Criminal breach of trust is defined under Section 405 I. P. C. As per said Section 405 I. P. C. whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commit "criminal breach of trust. " So in the instant case, admittedly the accused issued invoice and also original R. Rs. duly endorsing the same in favour of the complainant and the goods were also booked in Karnataka to reach the Shalimar railway station Calcutta. Those documents are sufficient for the complainant to take delivery of the goods. In fact, in the complaint itself it is stated that the ownership has been passed on from the accused to the complainant on account of delivery of invoices and also endorsement of R. Rs. in favour of the complainant. It is also not disputed that ultimately the accused did not enjoy the goods or misappropriate the same. It is the admitted case of the complainant that ultimately M/s. Bengani Food Products Pvt. Ltd. received the goods after the complainant duly endorsed the R. Rs. in favour of M/s. Bengani Food Products pvt. in favour of the complainant. It is also not disputed that ultimately the accused did not enjoy the goods or misappropriate the same. It is the admitted case of the complainant that ultimately M/s. Bengani Food Products Pvt. Ltd. received the goods after the complainant duly endorsed the R. Rs. in favour of M/s. Bengani Food Products pvt. Ltd. an that too after taking the value of the said goods paid by the complainant to the accused, from M/s. Bengani Food Products Private Limited. The accused did not get any benefit of such deal. Further there is no entrustment of complainant s property to the accused. Therefore, the question of misappropriation of the property of the complainant by the accused does not at all arise. Thus, none of the ingredients of Section 409 I. P. C. are made out from the averments made in the complaint. Learned magistrate without applying the mind whether there was any criminal breach of trust in this case, took cognizance of the offence under Section 409 i. P. C also. Learned counsel for the complainant-second respondent also did not advance arguments to the effect that the facts of this case attract Section 409 I. P. C. Learned counsel vehemently contended that though the accused had already agreed to sell the same goods to m/s. Bengani Food Products Private Limited, Calcutta @ Rs. 445/- per quintal deliberately and dishonestly concealed the said fact and sold the same stock @ Rs. 505/- per quintal to the complainant and that as per the explanation given under Section 415 I. P. C a dishonest concealment of fact is a deception with the meaning of this section and hence this is a clear case of cheating punishable under Section 420 I. P. C. and that the Courts below concurrently held that the facts of the complaint disclose an offence punishable under Section 420 I. P. C and hence there is no need for interference by this Court. As against the same, the learned counsel for the petitioners-accused submitted that this is purely a civil matter and that if the complainant suffered any loss on account of the conduct of accused, it is open for him to file a suit for damages. As against the same, the learned counsel for the petitioners-accused submitted that this is purely a civil matter and that if the complainant suffered any loss on account of the conduct of accused, it is open for him to file a suit for damages. The alleged contract between A-1 and A-2 and M/s. Bengani Food Products Private Limited, Calcutta was not concluded by the date of the accused entering into contract with the complainant and therefore the question of dishonest concealment of fact does not at all arise as in fact there was no concluded contract by then. So it has to be seen whether the allegations made in the complaint are taken as true, can it be said that an offence of cheating is made out. As see from Section 415 I. P. C. whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to "cheat". As per the explanation given under Section 415 I. P. C dishonest concealment of fact is a deception within the meaning of this section. Illustrations are also given under Section 415 I. P. C. as to which kind of acts amount to cheating. The relevant illustrations required to be considered for determination of the point in issue in this case are the illustrations g and i . Illustration g reads as follows:"a intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards break his contract and does not deliver it, he does not cheat, but is liable to a civil action for breach of contract. "according to the averments of the complaint, the accused agreed to sell and deliver 16800 bags @ Rs. "according to the averments of the complaint, the accused agreed to sell and deliver 16800 bags @ Rs. 505/- per quintal and accordingly issued invoices in the name of the complainant and also duly endorsed all the four original R. Rs. in favour of the complainant to enable the complainant to take delivery of the goods at Shalimar Railway Station, Calcutta. It is also disputed that the accused booked the goods and the goods reached Shalimar Railway Station, Calcutta also. In fact, in the complaint itself, the complainant stated that the ownership in the goods was passed on to the complainant from the accused on delivery of invoice and the original R. Rs. which were endorsed in favour of the complainant. It is not the case of the complainant that the accused obstructed the complainant from taking delivery of good. It is the third party M/s. Bengani Food products Private Limited, Calcutta who approached the High Court and obtained stay of delivery to the complainant on the ground that the accused had already agreed to sell the same stock to them. It is not the case of the complainant that even before the goods are sold to the complainant, and even after the goods are booked, the accused never intended to deliver that goods at Shalimar Railway Station to the complainant. Admittedly, all the original R. Rs. are duly endorsed in favour of the complainant on the basis of which the complainant is entitled to take delivery of the goods at Shalimar Railway Station, Calcutta. In fact, according to the complaint averments, though the goods are worth Rs. 83 lakhs and odd, the ownership was transferred to the complainant after receipt of advance of Rs. 43,94,650/- on a promise that the balance would be paid within a week after taking delivery. According to the averments of the complaint, after the goods were dispatched and original R. Rs. were endorsed to the complainant, the copies of those R. Rs. were supplied to M/s. Bengani Food Products Private Limited, Calcutta who filed writ petition and obtained stay of delivery. Even if the said averment is taken as true, it amounts to breaking of the contract by the accused. As per the said illustration g such conduct of accused does not amount to cheating and such conduct gives rise to only a civil action for breach of contract. Even if the said averment is taken as true, it amounts to breaking of the contract by the accused. As per the said illustration g such conduct of accused does not amount to cheating and such conduct gives rise to only a civil action for breach of contract. So, as per the illustration g the averments of the complaint and the sworn statement gives rise to a cause of action to the complainant to take only civil action against the accused. Coming to illustration i , it reads as follows:"a sells and conveys an estate to B. A. knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats. "here, in this case admittedly even as per the complaint, the sale of the same goods by the accused in favour of M/s. Bengani Food Products Private Limited, Calcutta was not concluded and at the most it was only a contract to sell @ Rs. 445/- per quintal to M/s. Bengani Food products Private Limited, Calcutta. Even before the said contract was performed and the goods were sold to M/s. Bengani Food Products Private Limited, Calcutta, the accused in violation of the terms of the contract in favour of the M/s. Bengani Food Products Private Limited, Calcutta sold the same goods to the complainant who offered higher price. So, it amounts to violation of contract between the accused and M/s. Bengani Food Products Private Limited, Calcutta which gives rise to cause of action for M/s. Bengani Food Products Private Limited, Calcutta to proceed against the accused and it does not gives rise to cause of action for the complainant to proceed against the accused in criminal proceedings. Till the sale is complete in favour of M/s. Bengani Food Products Private Limited, Calcutta, it cannot be said that the accused had no right to sell the said property to the complainant. If the sale in favour of M/s. Bengani Food products Private Limited, Calcutta had been complete, and in spite of such concluded sale, the accused without disclosing the fact of previous sale sells the goods to the complainant and receives the purchase money, then it amounts to cheating as per the above said illustration (i ). If the sale in favour of M/s. Bengani Food products Private Limited, Calcutta had been complete, and in spite of such concluded sale, the accused without disclosing the fact of previous sale sells the goods to the complainant and receives the purchase money, then it amounts to cheating as per the above said illustration (i ). But, in this case, the sale was not complete. The said fact is evident from the averments of the complaint that ultimately on a compromise, the complainant duly endorsed the R. Rs. in favour of M/s. Bengani Food Products Private Limited, Calcutta which clearly shows that the ownership over the goods had already been passed in favour of the complainant and therefore M/s. Bengani Food Products Private Limited, Calcutta also had to pay the money of Rs. 43,00,000/- and odd paid by the complainant to the accused and then took the R. Rs. duly endorsed in their favour. It is also not the case of the complainant that the accused had issued original R. Rs duly endorsed in favour of M/s. Bengani Food Products Private Limited, Calcutta in respect of the same stock. The case of the complainant is that copies of original R. Rs. , which were duly endorsed in favour of the complainant, were supplied to M/s. Bengani Food Products Private limited, Calcutta and the said company filed those R. Rs. in the writ petition and obtained stay. Admittedly, no original R. Rs. were endorsed in favour of M/s. Bengani Food Products Private limited, Calcutta in respect of the same stock. Therefore, the goods were not sold and conveyed to M/s. Bengani Food Products Private Limited, Calcutta by the date when the accused agreed to sell the same goods to the complainant and passed on to the complainant by way of delivery of the invoice and also the original R. Rs. Therefore, illustration (i) is also not applicable to this case. The other illustrations are also not applicable to this case. Therefore, illustration (i) is also not applicable to this case. The other illustrations are also not applicable to this case. Therefore, I am unable to agree with the learned Senior Counsel Sri C. Padmanabha Reddy that the facts of this case would attract the offence of cheating punishable under Section 420 I. P. C. Further, admittedly the alleged fraud, according to the averments of the complaint is that the complainant is fully aware that the ownership over the goods has been passed on to the complainant and no such ownership over the goods was passed on to M/s. Bengani Food products Private Limited, Calcutta. The complainant failed to assert his ownership before the high Court at Calcutta and preferred to compromise with the M/s. Bengani Food Products private Limited, Calcutta and duly endorsed original R. Rs. in favour of the M/s. Bengani Food products Private Limited, Calcutta in consideration of the payment of the entire amount of rs. 43,94,650/- paid by him to the accused towards the sale consideration and also towards the freight charges. According to the accused, the M/s. Bengani Food Products Private Limited, calcutta adopted arm-twisting tactics against the accused and ultimately achieved their object by entering into compromise with the complainant. So it is clear that the complainant yielded to the arm-twisting tactics adopted by M/s. Bengani Food Products Private Limited, Calcutta and purchased the peace instead of fighting litigation asserting their ownership rights. The accused who had duly transferred the ownership of the goods to the complainant cannot be found fault with. The contention of the complainant is that the accused supplied copies of original R. Rs. to m/s. Bengani Food Products Private Limited, Calcutta. Admittedly, the said R. Rs. are not original and those R. Rs. were not endorsed in favour of M/s. Bengani Food Products Private limited, Calcutta. As long as those R. Rs. are not endorsed in favour of M/s. Bengani Food products Private Limited, Calcutta, it does not in any way defeat the rights of the complainant. From the mere circumstance of supplying the copies of R. Rs. to M/s. Bengani Food Products private Limited, Calcutta, dishonest intention of the accused even before the goods are sold to the complainant cannot be inferred. It might be that the accused supplied copies of R. Rs. From the mere circumstance of supplying the copies of R. Rs. to M/s. Bengani Food Products private Limited, Calcutta, dishonest intention of the accused even before the goods are sold to the complainant cannot be inferred. It might be that the accused supplied copies of R. Rs. in proof of their assertion that the goods already sold and it is not possible for them to sell the same goods @ Rs. 445/- per quintal as agreed by them earlier, in view of the rise in prices. Such a possibility cannot be ruled out. As long as the original R. Rs. are not endorsed in favour of M/s. Bengani Food Products Private Limited, Calcutta dishonest intention cannot be attributed to the accused, even if it is believed that the copies of R. Rs. were supplied by the accused to M/s. Bengani Food Products Private Limited, Calcutta. The averments of the complaint do not disclose that even at the time of entering into sale transaction of the complainant, the accused had dishonest intention of not delivering the goods to the complainant. The facts in the complaint disclose viz. issuance of invoices in favour of the complainant, endorsement on the original R. Rs. and delivery of those R. Rs disclose that the accused duly transferred the ownership over the goods in pursuance of the sale transaction entered into between the accused and the complaint. Of-course, if the complainant had sustained any loss on account of the ultimate compromise entered into between the complainant and M/s. Bengani Food products Private Limited, Calcutta, for no fault of the complainant, he is at liberty to proceed against the accused by way of filing suit for damages. But, the complainant is not entitled to initiate criminal proceedings against the accused at Warangal, which is also not the place where the alleged fraud was committed. In the last paragraph of the complaint, it is stated that the complainant would have got profit of Rs. 4,00,000/- had the transaction been materialized without hurdles and further the complainant suffered loss of Rs. 80,000/- in their business for being held up at Calcutta and also suffered loss of Rs. 1,00,000/- towards demand draft charges and other expenses including the expenditure incurred in pursuing the matter in the High Court of Calcutta besides being their mental agony, physical stress and strains and financial loss. 80,000/- in their business for being held up at Calcutta and also suffered loss of Rs. 1,00,000/- towards demand draft charges and other expenses including the expenditure incurred in pursuing the matter in the High Court of Calcutta besides being their mental agony, physical stress and strains and financial loss. So it is clear that on account of such sufferings, the complainant wanted to take revenge against the accused obviously to pressurize the accused to make good the said loss. Instead of filing a civil suit for the loss sustained by him, the complainant adopted this tactics of putting the criminal law into motion, which conduct of the complainant amounts to abuse of process of law, which is required to be prevented by this Court exercising the inherent powers under Section 482 Cr. P. C. Thus, this point is found in favour of the petitioners-accused. ( 13 ) POINT No. 2: it is true that an application was filed before the Magistrate seeking discharge of the petitioners- accused and the learned Magistrate rejected the same against which the accused preferred revision before the Sessions court and the Sessions Court also dismissed the said revision petition. It is also true that the second revision preferred to this Court is not maintainable. But, the present revision is not a criminal revision petition and the accused approached this Court under Section 482 Cr. P. C. praying this Court to exercise its inherent powers under Section 482 cr. P. C and to quash the proceedings in order to prevent the abuse of process of criminal Court. In the instant case, as already found there is absolutely no allegation to the effect that even on the date of entering into contract with the complainant to supply the goods @ Rs. 505/- per quintal, the accused never intended to deliver the property and the quintal, the accused never intended to deliver the property and the accused had an dishonest intention not to deliver the property. Admittedly, the accused in pursuance of the contract issued invoice and also original r. Rs. duly endorsed in favour of the complainant even before receipt of entire consideration. Admittedly, the accused in pursuance of the contract issued invoice and also original r. Rs. duly endorsed in favour of the complainant even before receipt of entire consideration. There is also no allegation to the effect that the accused had anticipated knowledge that M/s. Bengani Food Products Private Limited, Calcutta would file a writ and obtain stay of the delivery of the goods to the complainant and in spite of such knowledge or anticipation the accused with dishonest intention sold the goods to the complainant. The perusal of complaint disclose that no dishonest intention at the time of entering into contract with the complainant is alleged in the complaint. The only allegation made in the complaint is that earlier the accused had agreed to sell the same goods to M/s. Bengani Food Products Private Limited, Calcutta @ Rs. 445/- per quintal and the same was not disclosed to the complainant. As already discussed supra that non-disclosure of such fact does not amount to cheating and at the most it would gives rise to cause of action to file a civil suit. This Court in Vijay Prakash Vijay Varghe s case (3 Supra) held that if there is no allegation in the complaint that the accused had dishonest intention i. e. deception at the time of making the promise, the allegations do not attract the offence punishable under Section 420 I. P. C. As there is no allegation of dishonest intention at the time of entering into the contract with the complainant, the offence under Section 420 I. P. C. does not attract. It is clear that the complainant instead of filing a civil suit for recovery of damages said to have been suffered on account of the litigation initiated by M/s. Bengani Food Products Private limited, Calcutta, resorted to filing a criminal complaint at Warangal against the accused who are residents of Karnataka State, obviously to pressurize them to make good the loss sustained by the complainant. The parties cannot be permitted to use the criminal Court for adopting pressure tactics by converting a civil case into the criminal case, If such action of the complainant is permitted, it is nothing but a clear abuse of process of criminal law. As seen from section 482 Cr. The parties cannot be permitted to use the criminal Court for adopting pressure tactics by converting a civil case into the criminal case, If such action of the complainant is permitted, it is nothing but a clear abuse of process of criminal law. As seen from section 482 Cr. P. C. the Legislature wanted to preserve the inherent powers of the High Court to pass necessary orders to prevent the abuse of process of any court or otherwise to secure the ends of justice. Merely because the magistrate refused to discharge and the Sessions Judge also refused to discharge the accused, it cannot be said that the High Court has no powers under Section 482 Cr. P. C. to quash the proceedings even if it is shown to the satisfaction of the high Court that there is abuse of process of any criminal court. Admittedly, both the magistrate court and the Sessions Court are subordinate to the High Court. When the High Court is satisfied that there is an abuse of process of any criminal court, the High Court is duty bound to prevent such abuse of process of any court exercising its powers under Section 482 Cr. P. C. and that is the reason why the Legislature specifically made provision under Section 482 cr. P. C. in the form of non-absentee provision. Recently the Apex Court also in Jitender Kumar jain s (2 Supra) considered the powers of the High Court under Section 482 Cr. P. C. in a case where the Sessions Court dismissed the revision petition and the accused moved the application under Section 482 Cr. P. C before the High Court of Delhi invoking its inherent jurisdiction. The High Court of Delhi dismissed the said petition on the ground that since the revision petition preferred by the appellant had been dismissed by the Court of Session, the petition does not lie. Thereupon the approached the Apex Court and the Apex Court held that the High Court failed to distinguish its separate powers under Section 397 of the Code of criminal Procedure as also under Section 482 of the said Code. Thereupon the approached the Apex Court and the Apex Court held that the High Court failed to distinguish its separate powers under Section 397 of the Code of criminal Procedure as also under Section 482 of the said Code. The Apex Court observed that though a second revision petition does not lie before the High Court, when one revision is dismissed by the Court of Session, still the Court of Session is a court subordinate to the High court, as such the proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 Cr. P. C. and hence the High Court should not have dismissed the petition of the appellant on that ground. From the said decision, it is clear that the High Court has got every power to quash the proceedings if it is satisfied that there is abuse of process of law even if the accused unsuccessfully approached the sessions Court by way of a revision petition. In the instant case, both the magistrate Court and Sessions Court are subordinate to the High Court. This Court has already found supra that there is abuse of process of criminal court. Hence this Court has got power to entertain the petition under Section 482 Cr. P. C. and to quash the proceedings. The decision of the Apex Court in Jagir Singh s case (1 Supra) relied on by the learned counsel for the respondent-complainant is not applicable to the facts of this case as this is not an application filed under Section 397 Cr. P. C. In the cited case, the Apex Court held that the revision cannot be entertained by both the High Court and Sessions Judge and when the learned Sessions Judge refused to interfere with the order of Magistrate, the High court has no power to set aside the order of the Magistrate in view of the bar under Section 397 (3) Cr. P. C. and that the said bar cannot be circumvented by treating the revision application as directed against the order of the Sessions Judge. So from the facts of the cited case, it is clear that the application filed before the high Court was a second revision filed against the orders of the Sessions Judge under Section 397 Cr. P. C. and that the said bar cannot be circumvented by treating the revision application as directed against the order of the Sessions Judge. So from the facts of the cited case, it is clear that the application filed before the high Court was a second revision filed against the orders of the Sessions Judge under Section 397 Cr. P. C. As there is a bar to entertain a second revision, the Apex Court held that the High Court has no power to entertain the second revision. But, in the instant case, the application is not filed under Section 397 Cr. P. C. but filed under Section 482 Cr. P. C. invoking the inherent jurisdiction of the High Court. Even otherwise, the decision of the Apex Court relied on by the counsel for the petitioners (Jitender Kumar Jain s Case 2 supra) is the later decision this Court has to follow the later decision of the Apex Curt. Hence, I am unable to agree with the contention of the learned Senior Counsel Sri C. Padmanabha reddy in this regard. On the other hand, I find considerable force in the contention of the learned counsel for the petitioners that this Court has got every right to quash the proceedings under Section 482 Cr. P. C. to prevent the abuse of process of criminal Court. Thus, this point is found accordingly. ( 14 ) POINT No. 3: in the result, this Criminal Petition is allowed and the proceedings against the petitioner in c. C. No. 490 of 2001 on the file of the I Additional Judicial Magistrate of First Class, Warangal are hereby quashed.