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2008 DIGILAW 483 (JK)

S. Sunder Singh v. Videocon Industries Ltd.

2008-12-11

J.P.SINGH

body2008
1. M/s Arora Enterprises, a partnership firm, operating at Nazibabad, Bijnore of the State of Utter Pradesh and S. Sunder Singh, one of its partners, have filed this petition invoking jurisdiction under Section 561A of the Code of Criminal Procedure, Svt. 1989, seeking quashing of M/s Videocon Industries Limiteds complaint filed through Mr. Ali Mohd. Qazi, its authorized representative against the petitioners for commission of offences punishable under Sections 415, 416, 418 & 420 of the Ranbir Penal Code and the proceedings initiated thereon by Judicial Magistrate Ist Class (3rd Additional Munsiff) Srinagar. 2. Though served through publication, the respondent has opted not to contest this petition. 3. Petitioners learned counsel, Sh. Anand, submits that Courts process has been abused by the respondent-complaint for settlement of a dispute which, being purely civil in nature, would not warrant initiation of criminal proceedings, And that the learned Magistrate had acted in a mechanical manner in issuing process against the petitioners when respondents complaint would not disclose commission of any offence whatsoever much less anywhere in the State of Jammu and Kashmir. 4. I have considered the submissions and perused the records of learned Judicial Magistrate Ist Class (3rd Addition al Munsiff) Srinagar. 5. Perusal of respondents complaint indicates petitioner no.1 too have approached the respondent-company for business dealings for the sale of goods manufactured by it, on credit basis, assuring that payments would be made from time to time after the receipt of goods. Petitioners are stated to have become irregular in clearing the payment for the goods which had been supplied to them by the respondent, and on being requested by the respondent to clear the dues, the petitioners would avoid making payment to the respondent-company. Respondent-company got alarmed on finding that a huge amount of Rs.6,74,717/ - had become payable by the petitioners to the respondent company as on March 31, 2003. 6. Accusing the petitioners of having committed fraud, the respondent had thus sought initiation of criminal proceedings against the petitioners. 7. Two paragraphs of the respondents complaint against the petitioners, on the basis whereof the respondent-company had projected its cause of action for initiation of criminal proceedings against the petitioners need to be noticed. These read thus: - 10. 6. Accusing the petitioners of having committed fraud, the respondent had thus sought initiation of criminal proceedings against the petitioners. 7. Two paragraphs of the respondents complaint against the petitioners, on the basis whereof the respondent-company had projected its cause of action for initiation of criminal proceedings against the petitioners need to be noticed. These read thus: - 10. That the cause of action arose on various dates when the accused person through his 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. The cause of action is still subsisting and continuing, as the accused person has still not make the payment of the outstanding arrears in spite of regress 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 to be prosecuted as per the relevant provisions of the law. 11. That the this Honble court has all the territorial jurisdiction to try and entertain the present complaint, as the complainant comp any has a business office at address particulars specifically mentioned at the title of the present complaint and which falls under the jurisdiction of this Hon ble Court. 8. It is imperative to mention here that it was also known to the accused persons that in the event of non-payment of dues, adverse consequences would ensure all over the places where the complainant company has its branch offices. It is the admitted position that the accused persons have also subjected themselves to the jurisdiction of this Honble Court for the purpose of the present complaint. 9. Perusal of respondents complaint, including the above referred two paragraphs, demonstrates the existence of a purely civil dispute between the petitioners and the respondent-company regarding the recovery of the amount which according to the respondent-company was payable to it by the petitioners as the cost of the goods which t he Company is stated to have supplied to petitioner-firm. The allegations appearing in the complaint and the statement made in support thereof do not spell out the existence of requisite ingredients suggesting commission of any offence under the Ranbir Penal Code. The allegations appearing in the complaint and the statement made in support thereof do not spell out the existence of requisite ingredients suggesting commission of any offence under the Ranbir Penal Code. The preliminary statement of respondents representative indicates that it was only when the petitioner firm had been found irregular in making payment of the goods that had been supplied to it by the respondent-company that the complainant company is stated to have realized that the petitioner firm had cheated it. This according to the complainant-company amounted to commission of the offences for which it had requested the Court to proceed against the petitioners. 10. Respondent-companys grievance projected as such in the complaint and the statement made in support thereof, would not, in my opinion, amount to commission of any offence by the petitioners, in that, 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 commitment made by a party to clear the amount payable by it to the other side, cannot be, construed as such an act or omission which may attract infraction of any provision of the Ranbir Penal Code. For proceeding against a person for commission of offences punishable under Sections 415,416,418 & 420 of the Ranbir Penal Code it has to be demonstrated, though prima facie, on the basis of the preliminary 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. The allegations reflected in the complaint and those made in the statement do not indicate any such thing on the basis whereof it may be said that the petitioners had practiced any deception on the respondent-company to deliver it its goods on credit basis. In the absence of any such evidence on records, mere non-payment of amount, being the cost of the goods stated to have been received by the petitioners, on credit basis, would not amount to commission of any offence. 11. I am supported in taking this view by a judgment of Honble Supreme Court of India in Ram Biraji Devi and anr. 11. 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., 2006 (2) Crimes 221(SC), where their Lordships of Honble Supreme Court of India had observe d 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. 12. Perusal of paragraph no.11 of the complaint quoted elsewhere in this judgment would demonstrate that although no offence is stated to have been committed by the petitioners in the State of Jammu and Kashmir yet a plea had been projected by the respondents that as one of the Branch Offices of respondent-company was located within the jurisdiction al limits of the learned Magistrate so the Magistrate would have jurisdiction to entertain the complaint regardless of the offence, alleged to have been committed outside the territorial jurisdiction of the State of Jammu and Kashmir. 13. Plea projected by the respondent to vest jurisdiction in the learned Magistrate, is utterly fallacious, in that, the misconceived logic projected by the respondent to demonstrate that the Court would have jurisdiction to entertain the complaint regardless of any offence having been committed within its jurisdiction, is not supported by any provision of law. In view of the provisions of Section 12 (2) of the Code of Criminal Procedure, Svt. 1989, the learned Magistrate was not, thus, justified in entertaining respondents complaint when no part of the offence had been alleged to have been committed either within local limits of Magistrates jurisdiction or anywhere in the territory of Jammu and Kashmir State. 14. In view of the provisions of Section 12 (2) of the Code of Criminal Procedure, Svt. 1989, the learned Magistrate was not, thus, justified in entertaining respondents complaint when no part of the offence had been alleged to have been committed either within local limits of Magistrates jurisdiction or anywhere in the territory of Jammu and Kashmir State. 14. While taking cognizance of respondent-companys complaint, learned Magistrate has not recorded his satisfaction as to whether or not any offence was made out against the petitioners on the basis of the statement of complainant, his witness and the complaint which had been filed by the respondent. Reproduction of learned Magistrates order becomes relevant at this stage. Its translated version reads thus: - Complainants counsel has produced the complaint which had been transferred by learned C.J.M for disposal. It be posted in the concerned register. Preliminary statements of the complainant and his one witness have been recorded. These to form part of the records. The accused be summoned by bailable warrants in the amount of Rs. 5000/-. File to be put up 21.09.2008. Announced: Sd/- Judicial Magistrate, Ist Class, Srinagar. 15. Perusal of above quoted order of the Judicial Magistrate thus indicates that the learned Magistrate has omitted to spell out the reasons which had weighed with him while contemplating issuance of process against the petitioners. 16. Orders passed by Judicial Authorities, particularly those, which affect the liberty of a person, thereby depriving him of his fundamental right, though pursuant to Court Orders, are required to be supported necessarily by reasons. Finding recorded by a Judicial Officer or a Judge sans reason, may not partake the character of a judicial finding. In this view of the matter, learned Magistrates order, which is not supported by any reason, cannot thus be sustained, as petitioners liberty cannot be curtailed on the basis of an unreasoned order. 17. That apart, process for summoning an accused under Section 204 of the Code of Criminal Procedure may be issued by a Magistrate only if there are sufficient grounds for proceeding in the matter. Before proceeding against an accused, the Magistrate taking cognizance of an offence is required to spell out the grounds in his order which according to him are sufficient for proceeding against the accused. In the absence of any such finding, the Magistrates order of issuing process against the accused may not be justified. 18. Before proceeding against an accused, the Magistrate taking cognizance of an offence is required to spell out the grounds in his order which according to him are sufficient for proceeding against the accused. In the absence of any such finding, the Magistrates order of issuing process against the accused may not be justified. 18. Learned Judicial Magistrate, has thus acted mechanically, without application of mind and in gross haste in omitting to comply with the requirements of law and spelling out the grounds which according to him were sufficient to proceeding against the petitioners. 19. Exercise of jurisdiction by Magistrates in issuing process under Section 204 of the Code of Criminal Procedure, Svt. 1989, results in curtailing liberty of those who are sought to be proceeded against. Criminal Courts in the State are, therefore, cautioned to be vigilant in entertaining such type of complaints while putting criminal law into motion when they take cognizance of the offence (s) 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(es) indicate existence of necessary ingredients of the offence(s) for which the cognizance is contemplated. 20. For all what has been said above, I am of the view that the process issued by the learned Judicial Magistrate, Ist Class (3rd Additional Munsiff) Srinagar on respondents complaint against the petitioners is abuse of process of the Court. Process issued by learned Magistrate, therefore, needs to be quashed. 21. Allowing this petition, respondents complaint and process issued thereon by learned Judicial Magistrate, Ist Class (3rd Additional Munsiff) Srinagar is, accordingly, quashed.