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Bombay High Court · body

2009 DIGILAW 60 (BOM)

Parasmal Sakhla (Jain) v. Nemichand Meghraj Jain

2009-01-14

S.S.SHINDE

body2009
Judgment: Oral Judgment: The present application is filed by the applicants with prayer to quash and set aside the Criminal Case No. 176/2000 under section 406, 420 of the Indian Penal Code, pending before the learned Judicial Magistrate, First Class, Sindhkheda, District ( 2 ) Dhule. 2. It is the case of the applicants that they carry on the business of Commission Agency at Mandor Mandi Jodhpur. Their business if of sale and purchase of various commodities including chilli. 3. The respondent is also businessman. He carries on business at Dondaicha, Tq. Sindhkheda, Dist, Dhule. It is the case of the applicants that the respondent used to sent his chilli to the firm of the applicants/petitioners for sale on commission agency basis. The applicants used to receive instructions from the respondent regarding storage and sale of the chilly, sent by the respondent and the applicants used to act as per the instructions of the respondent in respect of storing and selling of the chilly. 4. It is the case of the applicants that the respondents send total 1103 bags of chilly to the applicants for sale and with an instruction that if the requisite price is received then the same may be sold in the market, otherwise the said bags of chilly should be stored in the cold storage. It is the case of the applicants that out of 1103 bags of chilly, the applicants’ firm sold 324 bags and the remaining 77 bags remained with the applicants’ firm and the rest of the balanced bags were stored in cold storage. 5. It is the case of the applicants that the respondent filed a private complaint in the Court of Judicial Magistrate, First Class, Sindhkheda bearing Criminal Case No. 176/2000. In said complaint, the respondent alleged that he carries on the business under the name and style as M/s. Rahul Traders and deals in food grains, chilly etc. It is further alleged that the petitioners/applicant accused carries the business of chilly on commission agent basis and therefore, the applicants and respondent came in contact on various occasions of transactions of sales, that took place between them and that created confidence in the mind of the complainant about the applicants. It is further alleged by the respondent/complainant that the petitioners/applicants visited Dondaicha and appraised the complainant/respondent that the market rate of chilly at Jodhpur is more than at Dondaicha. It is further alleged by the respondent/complainant that the petitioners/applicants visited Dondaicha and appraised the complainant/respondent that the market rate of chilly at Jodhpur is more than at Dondaicha. It is further alleged that therefore, the complainant should purchase the chilly and sent it to the petitioners/applicants and the petitioners/applicants will sale the said chilly in the market and the amount of profit will sent to the complainant. It is further alleged that accordingly, the complainant sent the chilly on various occasions as details narrated in the complaint. 6. It is further alleged in the complaint that the chilly bags which were sent, the complainant instructed the petitioners/applicants that as the chilly sent by the complainant are not fetching the proper price; the same should not be sold and should be stored in cold storage. 7. The respondent/complainant further alleged that on 15.4.2000 the complainant sent 200 bags of chilly, the price of which is alleged at Rs.8,85,000/-. It is further alleged in para 3 of the complaint that the present petitioners/applicants sent Rs.1,00,000/- on 11.3.2000 and also sent Rs.75,000/-and also Rs.30,000/-, totalling to Rs.2,05,000/- (Rs. two lac and five thousand) on 12.4.2000. It is further alleged that the complainant sent total chilly of Rs.7,59,186/-and the petitioners/applicants paid only Rs.2,05,000/- (Rs. two lacs and five thousand). 8. It is further alleged that in reality the complainant sent the chilly to the petitioners/applicants with a view to gain profit and the said chilly was sent on the request made by the petitioners/applicants. The complainant further alleged that the petitioners did not sent the amount of profit and moreover, the principal amount is also not sent. It is further alleged that the complainant requested the petitioners/applicants many times to sent the balance amount, however, the present petitioners/applicants did not pay any heed towards the same. The complainant issued a notice through his Advocate on 8.11.2000, demanding the said amount. It is further alleged that in spite of the notice, the present petitioners/applicants did not pay any amount and therefore, it is alleged that the present petitioners/applicants have cheated him and also committed an offence of criminal breach of trust. On these grounds the complaint came to be filed. 9. It is further alleged that in spite of the notice, the present petitioners/applicants did not pay any amount and therefore, it is alleged that the present petitioners/applicants have cheated him and also committed an offence of criminal breach of trust. On these grounds the complaint came to be filed. 9. The learned Judicial Magistrate, First Class, Sindhkheda took the cognizance of the said complaint and registered the complaint as R.C.C.No. 176/2000 and the notices were sent to the present petitioners/applicants, directing the petitioners/applicants to remain present in the Court on 30th July, 2001. Hence, the present applicants/petitioners have filed this application under section 482 of the Code of Criminal Procedure, challenging the filing of the private complaint and the action of the Judicial Magistrate, First Class taking cognizance and registering the complaint as R.C.C.No. 176/2000. 10. The learned counsel appearing for the applicants submitted that it is true that the complainant used to sent his chilly to the present petitioners/applicants for sale at proper and adequate price. It is further submitted that as stated by the complainant himself, that he had instructed the present petitioners/applicants that if the chilly sent by the complainant is not getting proper price, then the said chilly should be stored in a cold storage. It is further submitted that the present applicants adequately replied the said notices issued by the complainant. It is further submitted that on 27th April, 2000 there was a fire to the cold storage in which the chilly of the complainant was stored and as per the said fire, the chilly and other goods were burned. The fact that there was fire to the cold storage was also communicated to the respondent/complainant and accordingly, the representative of the complainant had visited at Jodhpur on 24.4.2000 and he has made himself conversant with all the facts and thereafter, the complainant himself had visited Jodhpur four to five times and was also satisfied regarding the fire to the cold storage. 11. He further submitted that on 9.9.2000, the complainant again visited Jodhpur and contacted the present petitioners/applicants and took the entire account. 11. He further submitted that on 9.9.2000, the complainant again visited Jodhpur and contacted the present petitioners/applicants and took the entire account. The petitioners/applicants further submitted that the entire amount of the chilly which was sold by the applicant has been paid to the complainant/respondent and the balance bags of chilly which were kept in cold storage were completely destroyed in the fire to the cold storage, therefore, there was no question of cheating or criminal breach of trust. It is further submitted that filing the complaint by the complainant is nothing but pressurizing the present petitioners/applicants for extortion of money. It is further submitted that the applicants have acted as per instructions given by the complainant about sale of the chilly sent by him. It is further submitted that the chilly bags were stored in a cold storage of Tej Paras Associates and Exporters Private Ltd. (cold storage section under the receipts or vouchers which were in the name of Rahul Traders i.e. the complainant respondent). The said vouchers totally five in number are annexed with this application. He further submitted that the copy of the said report is placed by him on record. 12. The learned counsel submitted that there is no question of any criminal act, much less the provisions of section 420, 406 of the Indian Penal Code. The petitioners/applicants have not cheated the complainant/respondent in any manner. Whatever the business transactions were settled as per the trade practice, the chilly sent by the complainant/respondent were stored in a cold storage as per the instruction of the respondent/complainant and as there was an unforeseen event of fire to the cold storage, the present petitioners/applicants cannot be held responsible for the same. Therefore, the complaint filed by the respondent/complainant should be quashed and set aside. 13. The learned counsel appearing for the respondent vehemently opposed the application. He submitted that the applicants/petitioners persuaded the complainant to send the chilly to them and they will see that good amount of profit would be earned on the said chilly. He further submitted that there was element of inducement in the action of the applicants. He further submitted that the Magistrate has rightly issued the process under section 204 of Criminal Procedure Code against the applicant for the offences punishable under sections 408, 420, 434 of Indian Penal Code. He further submitted that there was element of inducement in the action of the applicants. He further submitted that the Magistrate has rightly issued the process under section 204 of Criminal Procedure Code against the applicant for the offences punishable under sections 408, 420, 434 of Indian Penal Code. He further submitted that looking in to the matter and the nature of the complaint, prima facie case is made out, therefore, this is not a fit case to exercise powers under section 482 of the Criminal Procedure Code. 14. I have heard the learned counsel appearing for the applicants at considerable length and learned counsel appearing for the respondent. I have perused the contents of the complaint and other documents which are annexed to the application and record available, I am satisfied that the present application deserves to be allowed. The perusal of the complaint would show that the entire transaction between the complainant and present applicants/petitioners is of civil nature. The complaint discloses that the applicants assured the complainant that he will sell the chilly sent by the complainant which will fetch good price and complainant will get good profit amount. Though the chilly of worth Rs.7,59,186/- was sent to the applicants, only amount of Rs.2,05,000/- had been received from the applicants by the complainant. The allegations in the complaint is that the applicants with an intention to cheat the complainant have not sent the balance amount of Rs.5,54,186/- to the complainant. It is further stated in the complaint that the amount towards profit is not sent to the complainant and also principal amount is also not sent to the complainant. The complaint further discloses that though on 8.11.2000 notice was given to the applicants that in case no balance amount is paid to the complainant, criminal case will be filed against the applicants, applicants have not paid the balance amount. The sum and substance of the complaint is that the applicants with intention to cheat the complainant convince him to send the large quantity of chilly to Jodhpur and applicants will see that the chilly will be sold for maximum price and good amount of profit will be earned by the complainant. The complainant believing the words of the applicants, send the chilly to the applicants. The complainant believing the words of the applicants, send the chilly to the applicants. However, the applicants did not act as per the instructions given by the complainant and sold the chilly without instructions and misappropriated the amount received by him and therefore, the complaint is filed. 15. In my considered view, even the allegations in the complaint are taken as it is, in the light of letter written by the complainant to the present applicants/petitioners, which is placed on record at page 17 along with this application, clearly shows that the present complainant had written to the applicants/petitioners that he is sending the chilly by truck No.GJ-9/V-7127, G-3 chilly, 124/03 Kilo, 177/23 kilo total 301 Vakal two exhibits 124, 177 should be kept in cold storage. The letter further reads that in case, if the complainant gets the price of Rs.3100, 3095, 3125 after selling the chilly, then only he will sell the chilly sent by the complainant. The letter further reads that the draft of Rs.2,50,000/- and 3,00,000/- should be sent to him. The letter further reads that please sell the chilly if the respondent can get Rs. 3150, 3125, last 3100, 3075 then only the chilly should be sold otherwise same should be kept in cold storage. Mere perusal of letter dated 15.4.2000 written by the complainant to the applicants clearly shows that the clear instructions were given by the respondent to the present applicants that in case the price mentioned in the letter is possible to be received after selling of the chilly sent by the complainant, then only the applicants should proceed to sale the chilly, otherwise the chilly should be stored in the cold storage. After reading the letter, there is no doubt in my mind that the instructions given by the complainant to the applicants were that only in case the price which is mentioned in the letter is possible to be received after selling of the chilly sent by the complainant, the applicants shall proceed for sale of the chilly, otherwise the said chilly should be stored in cold storage. Further Exh.B a document which shows that the chilly was kept in the cold storage. Further Exh.B a document which shows that the chilly was kept in the cold storage. In the note at the bottom of the said document, it is clearly mentioned that whatever the commodities are kept in the cold storage, those are on the risk of the person who has send the commodity or chilly as the case may be. The note further reads that if there is any fault either electric or mechanical or if there is fire, riots, earthquake, heavy rain etc. and if due to that there is loss to the commodity or the chilly which is stored in the cold storage, the concerned manager or owner of the cold storage would not be responsible in any manner. 16. In my considered view, the documents which are placed on record by the applicants along with complaint from page Nos. 17 to 22, would clearly demonstrate that the applicants have strictly acted in pursuance to the instructions given by the complainant from time to time. No fault can be attributed on the part of the applicants. In pursuant to the instructions received from the respondent, the chilly was stored in the cold storage, and part of the chilly was sold by the applicants as per the instructions of the complainant/respondent and an amount of Rs.2,05,000/- was also sent to the complainant. Viewed from any angle, the ingredients of section 406 and 420 of I.P.C. are not attracted. The tenor of the complaint is of civil nature. The notice which was sent to the applicant by the complainant, that itself shows that the complainant has mentioned in the notice that he is going to file the civil suit for recovery of money. It is not that, only the nature of allegations in the complaint is of civil nature. However, careful reading of the complaint does not disclose or attract any criminal provision. At the cost of repetition, it is to be mentioned that the applicants have totally followed the instructions given by the complainant from time to time and acted as per his directions. After selling some quantity of chilly which fetched price as per expectation of the complainant, was sold in the market and remaining quantity of chilly, as per the instructions of complainant was kept in the cold storage. After selling some quantity of chilly which fetched price as per expectation of the complainant, was sold in the market and remaining quantity of chilly, as per the instructions of complainant was kept in the cold storage. It is admitted position that the complainant has received the amount from the applicants towards the price of chilly which was sold in the market. It is pertinent to mention that Tejparas Associates & Exports Private Limited, where the chilly was stored, has not made even party to the complaint. Taking overall view of the matter, I am of the view that the criminal case No. 176/2000 under section 406 and 420 of the I.P.C., pending before the learned Judicial Magistrate, First Class, Sindhakheda deserves to be quashed. 17. In the result, the Criminal Case No. 176/2000 under section 406, 420 of Indian Penal Code filed by the complainant i.e. respondent No. 1 herein pending before the learned Judicial Magistrate, First Class, Sindhkheda is quashed and set aside. The application is allowed and is disposed of.