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2008 DIGILAW 191 (PAT)

Gangadhar Pandey v. State Of Bihar

2008-01-29

ABHIJIT SINHA

body2008
Judgment ABHIJIT SINHA, J. 1. Through this application under Section 482 Cr. P.C., the Petitioner, proprietor of M/S. Sarwamangla Marketing, who has been impleaded as the sole accused in Complaint Case No. 1507 of 2003, seeks the quashing of the Order dated, 2nd April, 2005 passed therein by Sri Sanjay Kumar Sinha, Judicial Magistrate, First Class, Vaishali at Hajipur, whereby he has taken cognizance of the offence under Sections 420 and 406 I.P.C. 2. M/S. Lumbini Beverages Private Limited, a franchisee of Pepsi Foods through its representative, S.D. Chhaterjee, Manager (H.R.D.), who has been impleaded as Opposite party No. 2 herein, filed the aforesaid complaint case inter alia, stating that the Complainant was manufacturer of soft drinks including Pepsi having its manufacturing unit at the Industrial Area, Hajipur and the accused was the stockist of Pepsi, a product of Lumbini Beverages Private Limited and he was doing business with the Complainants company during the period 2001-2002 and sum of Rs. 9,45,898.66 had not been paid to the Complainants company towards soft drinks and that 2516.15 cases of glass bottles had not been returned to the company by the accused and that the same had illegally been withheld by the accused and as such had committed criminal breach of trust. It was also alleged that the company had reasons to believe that the empty bottles of Pepsi were being used for manufacturing and sale of adulterated/spurious cold drinks in the name of Pepsi which falls within the ambit of offence under Sections 272, 406 and 420 I.P.C. It is said that the Complainants company had requested for the return of the empty bottles and notwithstanding sending of legal notice by the Complainant to the accused on 28th August, 2002 under registered cover, the accused had evinced no response although he had initially assured the Complainant to pay the aforesaid amount and also return the empty bottles. 3. It has been submitted by the learned Counsel of the Petitioner that the defence case is that initially the Petitioner had started business of Pepsi soft drinks as stockist for Bhagalpur District in the name and style of M/s. Pandey Brothers (P) Limited with Annada Marketing (P) Limited from 13th February, 1999 and the Petitioner was the proprietor of M/s. Pandey Brothers (P) Limited. He changed the name and style of his firm M/s. Pandey Brothers (P) Limited to M/S. Sarwamangla Marketing (P) Limited in the year 1999 and having registered itself gave information thereof to M/S. Annada Marketing and in reply thereto M/s. Annada Marketing sent a letter dated, 5th October, 1999 to M/s. Pandey Brother to the effect that "change of name and style of your firm will only be possible after we are closing account of M/s. Pandey Brothers, i.e., trading and empty account" and a request was made to settle trading and empty bottles account. It is further said that after closing of the entire account and after refund of empty bottles to the Complainants company, the Petitioner again started the business with Annada Marketing (P) Limited under the new name of M/s. Serwamangla Marketing but M/S. Annada Marketing did not refund the security money of Rs. 50,000 which had already been paid to the Complainants company on 13th February, 1999 and the price of empty bottles which was credited in the account of M/s. Pandey Brothers. In support thereof, reference has been made to Annexure-3 to the application. It is further said that all of a sudden the Complainant changed the name and style of his firm from M/S. Annada Marketing (P) Limited to M/s. Lumbini Beverages (P) Limited and started business under the new name and style of his firm with the Petitioners firm from March, 2001 to 21st October, 2001 whereafter the Petitioner stopped business with the Complainants company. It is further submitted that on 31st December, 2001, the Petitioner sent statement of accounts for the period 10st January, 2001 to 31st December, 2001 to the Complainants company through the company parcel as also by registered cover and after perusal of the statement of account, a copy whereof is appended as Annexure-4 to the application, it would be evident that about Rs. 20,00,000 was due with the Complainants company which was payable to the Petitioner by the Complainants company but without giving any reply regarding the statement of account the claim of the Petitioner of the aforesaid head, all of a sudden the Complainants company started business with new stockist as a result whereof a huge sum of money, of the Petitioner remained outstanding. 4. 4. It has further been submitted that on 26th May, 2002, some officials of the Complainants company came to Bhagalpur for settling account in question with the Petitioner and minutes were prepared with the consent of both parties in which four decisions were taken. A copy of the minutes has been appended as Annexure-5 to the petition and according to the Petitioner out of the four decisions, two had been complied by him but the Complainant had failed to comply with the remaining two decisions till now. It was finally submitted that since the entire disputes related to settling of accounts, the cause of action was of civil nature and no criminal liability lay with the Petitioner. 5. Opposite Party No. 2 having entered his appearance to contest the application has submitted that it is an admitted position that the company had supplied the cold drinks to the Petitioners firm and from the account statement maintained by the company it was found that a sum of Rs. 9,45,898.66 was still due with the Petitioner and the said sum and glass bottles had not been returned to the Complainant by the accused. It has also been submitted that from the aforesaid facts, it would be clear that the Petitioner for the reasons best known to him received the liquid bottles but did not return the empty bottles with ulterior motive which amounts to criminal breach of trust as well as cheating and the learned Magistrate had rightly taken cognizance. It was also submitted that whatever submissions have been advanced by the learned Counsel for the Petitioner unfortunately are his defence and the same cannot be looked into a proceeding under Section 482 Cr.P.C, since it is a subject matter that is required to be proved through evidence in course of trial. 6. It is true that whatever submissions have been advanced by the learned Counsel for the Petitioner are his defence but that by itself does not put a bar on the Court to entertain a application for quashing where from the facts narrated in the complaint, it would be apparent that the matter involves a commercial transaction or a money transaction. The crux of the matter is that the Complainant is aggrieved by the fact that certain amounts outstanding with the Petitioner and several bottles remaining in his custody have not been returned. The crux of the matter is that the Complainant is aggrieved by the fact that certain amounts outstanding with the Petitioner and several bottles remaining in his custody have not been returned. On the other hand, the Petitioner with reference to the statement of account has pointed out that a sum of Rs. 20,00,000 had remained outstanding with the Complainant. 7. So far as the legal position is concerned, as indicated in several decisions of the Apex Court, the only relevant question for quashing the complaint or the Order of cognizance taken is whether the allegation made in the complaint even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case alleged against the accused. It is well settled that only because civil remedy is available, criminal law remedy is not barred, if there are ingredients of criminal offence. The Apex Court in this connection has been pleased to enunciate the principles relating to the exercise of powers under Section 482 Cr.P.C. in the case of Indian Oil Corporation V/s. N.E.P.C. reported in (2006) 6 SCC 736 . 8. In the instant case, from the averments made in the complaint petition as also the facts gathered in course of the submissions advanced by the learned Counsels for the parties, it is apparent that the entire transaction relates to a commercial transaction involving settlement of accounts. This apparently is outside the ambit of a criminal offence and gives rise to a purely civil cause of action which can be duly adjudicated by a competent Court of civil jurisdiction. It is apparent that the ingredients making out the offences under Sections 406 and 420 I.P.C. are missing and no case of cheating or breach of trust has been made out. It further appears that O.P. No. 2 has filed the complaint case not to obtain the conviction of the Petitioner but to pressurize him in Order to get back the amount allegedly due to him from the accused. Apparently, this prosecution is malicious and has been filed with oblique and ulterior motive. It amounts to misuse of the process of the Court. 9. Apparently, this prosecution is malicious and has been filed with oblique and ulterior motive. It amounts to misuse of the process of the Court. 9. In this connection, It would be gainful to refer to the case of G. SagarSuri V/s. State of U.P. reported in (2000) 2 SCC 636 , where their Lordship observed that "However there is a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/ creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged." 10. Due regard being had to the facts and the circumstances of the case, this is an appropriate case which calls for interference by this Court. Accordingly, the impugned Order and the entire criminal proceedings are hereby quashed and the application is allowed.