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Madhya Pradesh High Court · body

2007 DIGILAW 480 (MP)

TOTALFINAELF INDIALIMITED v. SHYAM BABU

2007-04-26

S.L.JAIN

body2007
Judgment ( 1. ) THIS order shall govern the disposal of this petition as well as Misc. Criminal Case No. 2248/2006 (Raja Upadhyaya Vs. Shyam Babu ). As both the petitions arise out of the same order and common question is involved in both the petitions, they are being disposed of analogously. ( 2. ) INVOKING extra-ordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (henceforth, the Code), petitioners of both the petitions have filed these petitions for quashing the proceedings in complaint Case No. 1375/2005 pending against them in the Court of CJM, chhatarpur and for setting aside the order dated 15-12-2005 passed in the said proceedings. ( 3. ) THE facts which led to filing of these petitions, in nut shell, are that the respondent in both the petitions filed a complaint against the petitioner Nos. 2 and 3 of the instant petition and one Raja Upadhyaya, the petitioner in Misc. Cr. Case No. 2248/2006. It is alleged in the complaint that Thierry Gautier and sanjay Handa, the petitioner Nos. 2 and 3, respectively, of the instant petition are, respectively, the Chief Executive Officer and Assistant Vice President, central Zone M/s. Totalfinaelf India Limited (the petitioner No. 1 in the present petition ). It is alleged in the complaint that the complainant is running business of auto parts at Chhatarpur. Petitioner No. 1 was indulged in manufacturing of lubricants and other oil products. In order to promote sale of lubricants oil the respondent was appointed as one of the distributors on 26-4-1997. On 30-4-97 the complainant sent a draft of Rs. 35,000/- to Jabalpur depot of the accused persons. Thereafter, the respondent had been sending drafts in favour of the petitioner-company to supply the goods. The accused persons did not account for the following drafts:- Despite receiving the aforesaid drafts the accused persons did not dispatch the goods and closed their business in the year 2000. When the complainant asked for the copy of his account the accused persons delivered the copy in the year 2002. On comparison the complainant found that the aforesaid eight drafts have not been shown in his account. The complainant contacted the accused persons for settling the account but the accused persons did not settled the account. It is alleged in the complaint that the accused persons caused wrongful loss of Rs. 3,23,000/ -. ( 4. On comparison the complainant found that the aforesaid eight drafts have not been shown in his account. The complainant contacted the accused persons for settling the account but the accused persons did not settled the account. It is alleged in the complaint that the accused persons caused wrongful loss of Rs. 3,23,000/ -. ( 4. ) THE Trial Court recorded the statements under Sections 200 and 202 of the Code and registered the case against the accused persons for the offences under Sections 406 and 420 of the IPC. ( 5. ) IT is this order of the Trial Court which is the cause of grievance of the petitioners in both the petitions. ( 6. ) THE petitioners alleged that the depots of the petitioner No. 1 of the instant petition were operated by contractors. The distributors at the time of collecting the supply of lubricants and other allied products used to give demand drafts in the name of the company and they were routed through the depots after supply was made against the demand drafts. The demand drafts received from various distributors were forwarded to the company along with invoice and/or forwarding letters having details of persons from whom demand drafts were received. The Jabalpur Depot of the company was closed in the year 2000 and an amount of Rs. 1,22,020. 37 was outstanding against the complainant. He issued a cheque dated 12-2-2001 to settle the outstanding dues and the same was presented to the bank which was returned with an endorsement "fund insufficient". ( 7. ) THE petitioner-company thereafter served a registered notice to the respondent to pay the outstanding dues but the amount was not paid. Then the company had no choice except to file the complaint against the respondent under Section 138, Negotiable Instruments Act (henceforth the Act ). The same was registered as Complaint Case No. 297/2001. The respondent, during pendency of the complaint case, filed a civil suit at Chhatarpur. In the civil suit the petitioner-company filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. The application was dismissed by the Trial Court. ( 8. ) BEING aggrieved the petitioner-company had filed a revision before this Court. In the revision, this Court stayed the proceedings in civil suit filed by the respondent at Chhatarpur. The application was dismissed by the Trial Court. ( 8. ) BEING aggrieved the petitioner-company had filed a revision before this Court. In the revision, this Court stayed the proceedings in civil suit filed by the respondent at Chhatarpur. In the complaint case filed by the petitioner-company under Section 138 of the Act the respondent had been convicted and sentenced to pay a fine of Rs. 2,44,040/- in default whereof to suffer RI for three months. Out of the fine amount a sum of Rs. 1,22,000/- was directed to be paid to the petitioner-company as compensation. ( 9. ) AGAINST the order of conviction under Section 138 of the Act the respondent preferred a criminal appeal before Sessions Judge, Mumbai. During the pendency of the appeal the respondent gave his consent to settle the issue by paying Rs. 1,22,020/- being the actual cheque amount and also gave undertaking that he would withdraw the civil suit filed by him before District Judge, chhatarpur. As the respondent was ready to pay the outstanding amount of cheque and the company was also not interested in his conviction, it accepted the terms and conditions of the settlement. With the consent of both the parties the Sessions Judge, Mumbai set aside the conviction on amicable settlement. ( 10. ) IT is alleged by the petitioners that after the conviction under section 138 of the Act the respondent filed a complaint on 19-5-2005. The petitioners alleged that Thierry Gautier, the petitioner No. 2 of the instant petition is a French National and at no point of time was involved in any of the transactions with the respondent. He was neither in India nor was the Managing director and Chief Executive Officer of the petitioner-company at the time of alleged transactions. No transactions of any kind had taken place with the consent or under the authority of Raja Upadhyaya and Sanjay Handa. ( 11. ) THE petitioners alleged that the present complaint is nothing but an afterthought to pressurize the petitioner-company. The petitioners further submitted that the facts alleged in the complaint do not make out any case against them. There is no justification in issuing non-bailable warrant of arrest against the petitioners. ( 11. ) THE petitioners alleged that the present complaint is nothing but an afterthought to pressurize the petitioner-company. The petitioners further submitted that the facts alleged in the complaint do not make out any case against them. There is no justification in issuing non-bailable warrant of arrest against the petitioners. The complaint filed by the complainant is subsequent to his conviction in the case filed by the petitioners under Section 138 of the Act and as such the same is a frivolous complaint to wreck vengeance against the petitioners. The complaint is, therefore, an abuse of the process of the law. ( 12. ) IT is submitted by the petitioners that the facts alleged in the complaint do not constitute offences punishable under Section 406 or 420 of the ipc, therefore, the complaint is liable to be dismissed. ( 13. ) I have heard Shri S. C. Sharma, Senior Counsel with Shri Abhay pandey, Counsel appearing for the petitioners in the instant petition and Shri vivek Shukla, Counsel for petitioner in Misc. Criminal Case No. 2248/2006 and shri Sanjay Agrawal, Counsel for respondent in both the petitions; and perused the records. ( 14. ) LEARNED Counsel for petitioners submitted that the judicial process should not be an instrument of oppression and needless harassment. Courts should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant to unleash vendetta to harass the persons needlessly. ( 15. ) PER contra, learned Counsel for respondent vehemently submitted that Section 482 of the Code is not an instrument handed over to the accused to short circuit a prosecution and bring about its sudden death. ( 16. ) ON perusal of the allegations made in the complaint and allegations made in the petition it appears that dispute between the parties is of civil nature. The facts alleged do not disclose the offences under Sections 406 and 420 of the ipc. It also appears that the complaint is malafide, frivolous and vexatious. The factual position as highlighted above clearly goes to show that the complaint has been filed as a counter blast after a long period. The dispute between the parties is of civil nature. The facts alleged do not disclose the offences under Sections 406 and 420 of the ipc. It also appears that the complaint is malafide, frivolous and vexatious. The factual position as highlighted above clearly goes to show that the complaint has been filed as a counter blast after a long period. The dispute between the parties is of civil nature. The breach of contract or breach of faith is not criminal offence where dishonest intention is not alleged against the accused. Money sent for supply of goods cannot be termed as money kept in trust. Only civil liability is created. Neither breach of trust nor cheating has been involved. Failure to supply the goods is no criminal offence. Where running amount was paid even if some amount remains outstanding the same will give rise to civil and not criminal action. Offence of misappropriation or cheating is not made out in such a case. There is no allegation that the petitioners or any of them deceived the complainant by dishonestly or fraudulently inducing him to deliver drafts. ( 17. ) IT is true that the existence of civil remedy is not bar to the trial under Sections 420 and 406 of the IPC. A man who is cheated and deprived of his money can file suit for recovery of money and also proceed against the wrong doer for cheating him if he is able to prove ingredients of Sections 420 and 406 of the IPC. Mere pendency of civil suit is no ground to bar proceeding in criminal Court but perusal of complaint does not disclose dishonest intention. Where the dispute is purely of civil nature the Courts cannot allow the parties to get the dispute settled in Criminal Courts. The facts alleged in the complaint do not disclose that the petitioners had dishonest or fraudulent intention at the time when complainant parted with various amounts and there is no allegation that the petitioners induced the complainant to pay the requisite amount by deceiving him. Mere fact that the petitioners subsequently did not abide by their contract by itself is not sufficient to fasten criminal liability on them for offence of cheating or misappropriation. ( 18. Mere fact that the petitioners subsequently did not abide by their contract by itself is not sufficient to fasten criminal liability on them for offence of cheating or misappropriation. ( 18. ) IN the world of business things are often done which are betrayals of confidence and deception which arouse moral indignation but are nevertheless civil wrongs which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. Not every immoral act is criminal and it is an abuse of the process of a Court to attempt to create new crimes in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises. Breach of contract will not create a criminal liability unless something more has been done with a purpose to deceive the complainant. ( 19. ) IN R. P. Kapoor Vs. State of Punjab, AIR 1960 SC 866 and State of haryana Vs. Bhajanlal, 1992 SCC (Criminal) 426, it has been held that where the allegations made in the complaint taken to its face value and accepted in its entirety do not constitute the offence alleged and do not disclose commission of any offence, the complaint under Section 482 of the Code should be quashed. ( 20. ) IN view of the fact that the facts alleged in the complaint accepting to be true do not constitute any offence under Sections 420 and 406 of the IPC, it is a fit case where the proceedings of complaint case should be quashed. ( 21. ) EX-CONSEQUENTLY, both the petitions are allowed. The impugned order dated 15-12-2005 passed by Chief Judicial Magistrate, Chhatarpur, is set aside and the proceedings pending against the petitioners of both the petitions, in Complaint Case No. 1375/2005 stand quashed. A copy of this order be placed in the record of Misc. Criminal Case No. 2248/2006 (Raja Upadhyaya Vs. Shyam Babu ). Misc. Cr. Case allowed.