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J&K High Court · body

2007 DIGILAW 282 (JK)

Helena G. v. Ali Mohd. Parray

2007-12-20

MOHAMMAD YAQOOB MIR

body2007
1. Criminal proceedings launched, based on a complaint filed by respondent no.1 (complainant) are challenged as being aimed at harassment amounting to abuse of process of court and being violative of norms of justice. 2. Basically son of the complainant, respondent no.2 herein and the petitioner have entered into a partnership whereunder they have agreed to carry partnership business under the name and style of M/S COCO at Firm 3527, Off Domlur Service Road, 13th Main, 1st Gross, Indira Nagar, Bangalore, even open to the parties to carry on business at any additional place(s) as may be mutually agreed between them from time to time. Date of commencement of partnership has been 15.08.2006. Garments, Fabric designing, Job work, Hospitality Services, Consultation etc. was to be dealt with in partnership business and change of nature of business with the condition to carry on business or any additional business will be on agreement of the partners. In case of dispute between the partners, matter has to be dealt with by referring the dispute to the Arbitration. 3. Complainant, father of Imshan partner of the firm has filed a complaint against petitioner alleging therein that his son and the accused (petitioner herein) are running the business under the name and style of M/S COCO at Bangalore, in that connection complainant used to visit Bangalore and accused also used to visit Srinagar. According to respondent no.1 (complainant) on 01.09.2006, petitioner asked him for money in lieu of which, the petitioner would send the silk garments to him for sale at Kashmir. 4. According to the complainant, accused convinced him about the genuineness of transactions and made him to believe that garments at cheap and reasonable rates would be supplied to him. Pursuant to the said belief, persuasion, and motivation, complainant claim to have deposited Rs. 01 lac in account no. 10416344174 of State Bank of India and again deposited Rs. 01 lac in the account no.30077421631 in the name of COCO/Chezmine to be encashed at State Bank Of India, Bangalore. The said amount is stated to have been received by the petitioner. It is further alleged that the petitioner had no intention to send the goods but fraudulently and with the deceitful intention, complainant has been made to part with the money, when the accused was never dealing in garments. 5. The said amount is stated to have been received by the petitioner. It is further alleged that the petitioner had no intention to send the goods but fraudulently and with the deceitful intention, complainant has been made to part with the money, when the accused was never dealing in garments. 5. Learned Magistrate, after recording the statement of the complainant and one witness produced therein, has taken the cognizance for commission of offence punishable under Section 420 & 506 RPC, as such, issued the process. Aggrieved by the said proceedings, instant petition for its quashment, as proceedings initiated by the trial court are projected to be abuse of process of Court, prevention of which is required as warranted under Section 561-A Cr.P.C. 6. Heard appearing counsel for the parties. Learned counsel appearing for the petitioner highlighted the circumstances as well as the allegations contained in the complaint and projected that basically partnership business was running between the petitioner and respondent no.2. Petitioner no.2 having, shown the different face, as he had left abroad leaving partnership business at the mercy of petitioner. It is in that connection father of respondent no.2 (complainant) has stepped in with the sole aim to settle the partnership transaction by having resort to launching of criminal proceedings. 7. In support of his contentions, learned counsel relied on judgment reported in AIR 1999 SC 1480 titled Nageshwar Prasad Singh v. Narayan Singh and anr., AIR 2000 SC 754 titled G. Sagar Suri and anr. v. State of U.P and ors., 2005 (1) Cr. R. 489 (S.C.) titled Kailash Verma v. Punjab State Civil Supplies Corp. and anr., 2006(II) SLJ 789 Roshan Lal Ansari & Ors v. M/S Kashmir Commercial Agency & Ors., 2002(1) SLJ 78 titled Satlsh Khosla and ors. v. Puran Chand. 8. Learned counsel for respondents reiterated that respondent no.1 has been induced to part with the amount of Rs. 2 lac with a belief that he shall be supplied garments when the petitioner was not dealing in garments. Court below has taken the cognizance of the matter correctly. Petition, as such, deserves to be rejected. 9. v. Puran Chand. 8. Learned counsel for respondents reiterated that respondent no.1 has been induced to part with the amount of Rs. 2 lac with a belief that he shall be supplied garments when the petitioner was not dealing in garments. Court below has taken the cognizance of the matter correctly. Petition, as such, deserves to be rejected. 9. On thoughtful consideration of the arguments advanced, on careful sifting and scanning of the record, one admitted position has emerged i.e. petitioner and respondent no.2 are doing partnership business running under the name and style of M/S COCO at Bangalore, dealing among other items in "garments" as well, which fact is also substantiated by the deed of partnership, Photostat copy of which is on record. Respondent no.1, father of the partner Imshan appears to have launched criminal proceedings with the object of settling inter-se dispute in between the existing partners. Nothing substantial has been brought on record which would support the fact that respondent no.1 has ever been dealing under any business of garments at Srinagar or was running any business under any style at Srinagar. Rupees two lacs deposited in the name of M/S COCO/Chezmine to be encashed at State Bank Of India, Bangalore, appears to be part transaction of the partnership business between son of the respondent and the petitioner. 10. Even if, the contention is taken to be correct that the petitioner was to supply garments, genuineness of the same cannot be questioned because it is admitted fact that the petitioner was dealing in the business of garments which fact is also admitted in the complaint. Why thereafter he has not supplied the garments, can be at the most termed as breach of contract, which is purely of civil nature. For attracting application of Section 420 R.P.C., dishonest intention must appear at the beginning of transaction. 11. In the backdrop of factual aspect of the case, as noticed hereinabove, it cannot be termed to be as dishonest intention when the son of complainant and petitioner admittedly are running partnership business which include "garments" also. In the judgment reported in AIR 1999 SC 1480, it is held that liability, if any, arising out of breach of contract, is civil in nature and not criminal. In 2006(II) SLJ page 789, it has been held: - "9. In the judgment reported in AIR 1999 SC 1480, it is held that liability, if any, arising out of breach of contract, is civil in nature and not criminal. In 2006(II) SLJ page 789, it has been held: - "9. Element of dishonest intention at the beginning of the transactions which is the Sine-Qua-Non for attracting Section 415 of the Ranbir Penal Code, is absent in the allegations and preliminary proof furnished by the respondent before the learned Magistrate." "12. Criminal Courts are required to be vigilant in entertaining such type of complaints. Which on the face of it appear to be vexatious and frivolous. This is so because exercise of jurisdiction by the Magistrates while issuing process under Section 204 of the Code of Criminal Procedure, Svt.1989 results in curtailing the liberty of the citizens, who are sought to be proceeded against on the basis of such type of complaints. 12. In the aforesaid backdrop, principles of law as has been enunciated, squarely applies to the facts and features of this case. 13. Though respondent no.2 is not a party before the trial court. He has been arrayed as respondent to expose the actual position of the matter. It appears that launching of criminal proceedings against the petitioner is simply to browbeat and tyrannize the petitioner because the amount of two lacs alleged to have been sent by the complainant and deposited in the name of M/S COCO/Chezmine, cannot be termed to have been sent on motivation or deception of the petitioner. Respondent no.2 is also partner of M/S COCO firm only satisfaction as can be derived from the record is that, for settling inter-se dispute in between the partners, (petitioner and respondent no.2), father of the partner, (respondent no.1) has stepped in and has launched the criminal proceedings, which in my considered opinion is simply to browbeat and tyrannize the petitioner. The transaction is purely civil in nature and remedies are available under remedial provisions of law. Element of criminal intent on the part of petitioner is totally missing. 14. To allege intimidation by the petitioner, living at Bangalore when the respondent is living at Srinagar, is concoction and totally vexatious. Criminal proceedings initiated are simply for dragging the petitioner. In my view I am fortified by judgment reported in AIR 2000 SC 754. Element of criminal intent on the part of petitioner is totally missing. 14. To allege intimidation by the petitioner, living at Bangalore when the respondent is living at Srinagar, is concoction and totally vexatious. Criminal proceedings initiated are simply for dragging the petitioner. In my view I am fortified by judgment reported in AIR 2000 SC 754. No one can be permitted to drag any person by launching vexatious criminal proceedings with the object of settling the dispute which is essentially civil in its nature. To allow the continuance of such criminal proceedings amount to abuse of process of law. So for securing the ends of justice, quashment of proceedings is indispensable. 15. Accordingly, proceedings are quashed. Copy of order alongwith the subordinate record be sent to trial court for being consigned to records. Disposed of.