Research › Search › Judgment

J&K High Court · body

2007 DIGILAW 229 (JK)

Modern Electronics v. Videocon International Ltd.

2007-10-17

J.P.SINGH

body2007
1. Aggrieved by the process issued by Learned Judicial Magistrate Ist Class (City Munsiff), Srinagar on the complaint of M/s. Videocon International Limited for the infraction of Sections 415, 417, 418, 420 and 406 RPC, the petitioners have filed this petition seeking quashing of the process so issued. 2. Mr. M. Aijaz, learned advocate for the petitioners, says that the complaint and material furnished in support thereof did not disclose the commission of any offence by the petitioners. The complaint of the respondent indicated nothing except the existence of a civil dispute seeking recovery of some amount from the petitioners on the basis of a running account between the parties. Learned Counsel thus says that the process issued against the petitioners is an abuse of the judicial process. 3. Ms. Musbat appearing for M/s. Videocon International Limited, justifying the process issued by the learned Magistrate, says that the complaint did disclose commission of the offences for which the petitioners had been summoned and no case had been made out by the petitioners for quashing of the proceedings pending before the learned Magistrate. 4. I have considered the submissions made at the Bar. Perusal of various paragraphs of the complaint, the statement made by Mr. Irfan Andleeb, the attorney of the respondent Company, on oath, as also the Solicitors notice to the petitioners before filing the complaint, shows that there had been long drawn business dealings between the petitioner Firm and the respondent Company which had been supplying electronic goods manufactured by it to the petitioner Firm on credit basis for its sale in Kashmir Valley. Copy of the ledger supplied with the complaint shows that an amount of Rs.19,70,931/- was payable by the petitioner Firm to the respondent Company as on 2001. The respondent Company is stated to have been alarmed on seeing this huge amount payable by the petitioner Firm to the respondent Company whereafter it started requesting the petitioner Firm to clear the payment. Solicitors notice issued in June 2005 too does not appear to have any effect on the petitioner Firm which later resulted in filing of the complaint. The attorney of the complainant company says that when the petitioner Firm did not pay the amount to the respondent Company, it was discovered that the petitioners had no intention of paying the amount and had thus cheated the respondent Company. The attorney of the complainant company says that when the petitioner Firm did not pay the amount to the respondent Company, it was discovered that the petitioners had no intention of paying the amount and had thus cheated the respondent Company. The copy of the ledger forming part of the complaint indicates that the business transaction between the petitioner Firm and the respondent Company had started much before 1996. It further indicates that after receiving the consignments of material manufactured by respondent Company, the petitioner Firm had been making payments to the Company and all those payments stand recorded in the ledger. The complaint is significantly silent as to when was the offence of cheating committed by the petitioners. Reference to some of the paragraphs of the complaint may be relevant at this stage. These paragraphs read thus:-- "8. That the Complainant company after the goods were received by accused No. 2, 3 and 4 requested the accused No. 2, 3 and 4 to make the payments but the accused No. 2, 3 and 4 in very appealing and pleasing words requested for more time and replied that the payments will be made as soon as the goods are sold. The Complainant Company believing and bonafidely relying on the said representations extended by the accused No. 2, 3 and 4 supplied more goods as requested by the accused No. 2, 3 and 4 for themselves and on behalf of accused No. 1. The accused persons to show their strength on the said representations used to make some meager payments to the Complainant Company. 9. That the Complainant Company continued supplying goods to the accused persons from time to time on specific demands put up by the accused persons on the basis of the representations as extended by the persons for the payment of the said goods to the Complainant Company. It was when the Credit balance came to a figure of Rs. 19,70,931/- (Rupees Nineteen Lacs Seventy Thousand Nine Hundred Thirty One Only), the Complainant Company preferred to strictly press on the accused persons to make the payments for the goods received by the accused persons from time to time, the accused persons instead of making the payments preferred to defer the same on one pretext or the other and kept on repeating their representations of assurances and promises. But the payments never came from the accused persons and the Complainant Company was constrained to stop the future supply of goods to the accused persons and initiated a strict follow up of the Complainant Company went into the deaf ears of the accused persons and no payment came forward from the accused persons. It was then, it came to be realized to the Complainant Company, from the subsequent conduct of the accused persons that the accused persons never had any intentions to make the payments of the goods as supplied by the Complainant company and all the representations as extended by the accused persons were just to procure the goods from the Complainant Company and sell in the market thereby causing financial loss to the Complainant Company. The copies of the Statement of accounts as maintained by the Complainant Company of the accused persons reflecting the requisite Invoices and the amount accrued are annexed herewith as ANNEXURE-"C". 10. That the complainant company however, continued its efforts to request the accused persons to make the payments for the goods received but the accused persons remained to defer the payments on some or the other pretexts which were false to the knowledge of the accused persons. The accused persons continued to linger on with their representations, which never came to be realized to any effect and were totally false and wrong. Therefore, the Complainant Company was constrained to issue a Legal Notice dated 29-06-2005 to the accused persons through its Advocate. A.H.Naik & Associates whereby the accused persons were again required to make the payment of the amount of goods received and as reflected in the Statement of accounts. However, the accused persons never made the payments. The copy of the Legal Notice dated 14-06-2005 issued to the accused persons is annexed herewith as ANNEXURE-"D". 13. That the cause of action arose on various dates when the accused persons through their representations induced the Complainant company to supply the goods from time to time without payment for the same. The cause of action also arose when the accused persons kept on deferring the payment of the goods when approached by the Complainant Company and also when they were issued a Legal Notice dated 29.06.05. The cause of action also arose when the accused persons kept on deferring the payment of the goods when approached by the Complainant Company and also when they were issued a Legal Notice dated 29.06.05. The cause of action is still subsisting and continuing, as the accused persons have still not made the payments of the outstanding arrears inspite of the rigorous efforts put by the officials of the Complainant Company. The accused persons have therefore, by the acts and deeds committed by them, to cheat and defraud the complainant company, have rendered themselves liable to be prosecuted as per the relevant provisions of law." 5. Perusal of the above referred paragraphs of the complaint, when read with respondents solicitors notice and the statement of Mr. Andleeb, demonstrate nothing except the existence of a purely civil dispute between the petitioner Firm and the respondent Company regarding the recovery of the costs of the goods which are stated to have been supplied by the respondent Company to the petitioner Firm. The allegations appearing in the complaint and the statement made in support thereof do not spell out requisite ingredients constituting any of the offences for which the learned Magistrate had issued process against the petitioners. The long drawn business transaction between the petitioner Firm and respondent Company for over a period of ten years showing making of payment by the petitioner Firm to the respondent Company right up to the time when the balance amount of the cost of the goods had been found to be Rs.19,70,931/-, goes a long way in establishing a purely civil business transaction between the petitioner and the respondent Company for which criminal law could not be put into motion so as to recover the cost of the goods allegedly supplied by the respondent Company to the petitioner Firm on credit basis. The evidence produced by the complainant indicates that it was only when the petitioner Firm had been found irregular in making payment of the goods supplied by respondent-Company to the petitioner Firm, that the complainant company is said to have realized that the petitioner Firm had cheated it. This according to the complainant-company amounted to commission of the offences for which process had been issued against the petitioner Firm. This according to the complainant-company amounted to commission of the offences for which process had been issued against the petitioner Firm. I do not find any merit in this plea of the respondent Company because the intention of cheating has to be found to be in existence at the inception of the transaction and not on the failure of a party to honour its commitment. Non-fulfillment of the commitment made by a party to clear the amount payable by it, being the costs of goods received on credit, cannot, looked from any angle, be construed as an act which may attract any provision of the Ranbir Penal Code. For proceeding against a person for commission of offences punishable under section 417 RPC or the like, it has to be established on the basis of evidence that the person sought to be proceeded against had deceived and thereby fraudulently or dishonestly induced the person so deceived to deliver any property to any person. There is no evidence on records on the basis whereof it may be said that the petitioner Firm had practiced any deception on the respondent company to deliver it its manufactured goods on credit basis. In the absence of any such evidence on records, mere non-payment of amount, being the cost of goods, had on credit basis, would not amount to commission of any offence. The process issued by learned Magistrate is thus a clear case of the abuse of the judicial process. 6. I am supported in taking this view by a judgment of Honble Supreme Court of India in Ram Biraji Devi and anr. Versus Umesh Kumar Singh and anr., reported as 2006 (2) Crimes 221(SC), where their Lordships of Honble Supreme Court of India held as follows:-- "Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No criminal case is made out by the complainant against the appellants in his complaint and in the statements of the complainant and his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offences. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the appellants on the basis of the material on record." 7. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the appellants on the basis of the material on record." 7. Learned Judicial Magistrate, Ist Class (City Munsiff) Srinagar has acted in haste in not going through the material on records and the law on the subject to find out as to whether or not a case justifying putting the criminal law into motion had been made out. The process appears to have been issued by the Learned Magistrate in a routine manner. 8. The criminal Courts are required to be cautious while putting criminal law into motion when they take cognizance of the offences on private complaints under Section 190 of the Code of Criminal Procedure. Cognizance may be taken only when the evidence of the complainant and his witness/s indicate existence of necessary ingredients of the offence/s for which the cognizance is contemplated. 9. For all what has been said above, the process issued by learned Judicial Magistrate, Ist Class (City Munsiff), Srinagar in summoning the petitioner Firm and its partners for trial under Sections 415,417,418, 420 and 406 RPC, when the Complaint and the evidence produced in support thereof did not disclose the commission of any offence whatsoever, has resulted in the abuse of judicial process. This petition is accordingly allowed. The process issued by learned Judicial Magistrate, Ist Class (City Munsiff), Srinagar on respondent Companys complaint is, accordingly, quashed and respondent Companys complaint dismissed.