Research › Search › Judgment

Uttarakhand High Court · body

2011 DIGILAW 494 (UTT)

PRADOSH KUMAR AWASTHI v. STATE OF UTTARANCHAL

2011-08-04

SERVESH KUMAR GUPTA

body2011
JUDGMENT Hon’ble Servesh Kumar Gupta, J.: The challenge by way of this criminal miscellaneous application is to the order of cognizance dated 16.3.2005 passed by 2nd Additional Civil Judge/Judicial Magistrate, Dehradun in Criminal Complaint Case No. 1914/2004, Sunil Kumar v. Pioneer Paints & Chemicals and Others. In this order of cognizance, the applicant Shri Pradosh Kumar Awasthi and one Shri T.K. Awasthi were summoned for the offences of section 420/120B IPC. 2. This application under section 482 CrPC has been moved only by Shri Pradosh Kumar Awasthi, while Shri T.K. Awasthi has not filed any petition against the order of cognizance. 3. It appears that one Shri Sunil Kumar Gupta, private respondent no. 2 in the petition carries the business of supply of lime under the title M/s Vigyan Lime Company based at Dehradun, while the applicant Shri Pradosh Kumar Awasthi runs his company under the title M/s Pioneer Paints & Chemicals, Devpur, Rajajipuram, Lucknow. The applicant for the manufacturing of paints and chemicals needed supply of lime, so he along with his father Shri T.K. Awasthi (whose real name has been stated in the affidavit annexed with the petition as Shri Karuna Shankar Awasthi) contacted the complainant for supply of lime. The business contacts were established between the two. The complainant supplied the lime from time to time as per request made by the applicant. The letters were exchanged several times between the two on the question of default of payment as well as the quality of the goods which were so supplied. These differences led to the filing of a complaint by Shri Sunil Kumar Gupta against the applicant and his father besides the company M/s Pioneer Paints & Chemicals in its corporate capacity as accused no. 1. The statement of Shri Sunil Kumar Gupta was recorded on 10.2.2005 under Section 200 CrPC and statement of another witness Vikash Gupta (real nephew of complainant) also got recorded on 3.3.2005 under section 202 CrPC and Magistrate by way of this impugned order expressed his prima facie satisfaction and was of the opinion that a case has been made out against the accused persons for the offences and took cognizance as aforementioned. This order was challenged by way of this miscellaneous application. 4. I have heard learned Counsels of both the parties and perused the record. 5. This order was challenged by way of this miscellaneous application. 4. I have heard learned Counsels of both the parties and perused the record. 5. Learned Counsel of the applicant has relied upon a Supreme Court judgment rendered in V.Y. Jose & Anr. v. State of Gujarat & Anr. (2009) 3 SCC 78, wherein it was held that when a case essentially involves a civil dispute, then the High Court has the duty under section 483 CrPC to supervise functioning of the trial courts and for that purpose section 482 CrPC serves a salutary purpose that a person could not undergo harassment of litigation even though no criminal case has been made out against him. The Hon’ble Apex Court further held that when a matter which essentially involves a dispute of civil nature should not be allowed to become the subject matter of criminal proceedings which may be resorted to as a shortcut to execution of a non-existent decree. In the said case complaint was filed alleging cheating whereas the case in fact involved the civil dispute relating to a contract. Then Hon’ble Apex Court was of the view that the High Court ought to have exercised its power under section 482 CrPC. 6. Learned Counsel of the applicant has strenuously argued that the instant case is squarely covered with the law as laid down by the Hon’ble Apex Court (supra) because both the complainant and the accused are the businessmen. They entered into a transaction in pursuance of a contract/agreement. The complaint/respondent no. 2 supplied the lime under the agreement. Payment was made to him but there was the default in the full payment which is being reflected from so many letters annexed with the counter affidavit as well as rejoinder affidavit of either parties. It is also being reflected that more than Rs. 50,000/- were not paid by applicant to the respondent no. 2 towards the consideration of the supplied lime. 7. These transactions occurred between two since September, 2000 to May, 2001. The complainant made several demands, even sent the personal representative to the firm of applicant at Lucknow but they did not pay any head. So, on 29.11.2004, the complaint was filed whereupon the cognizance was taken as above. 8. It has been argued on behalf of the learned Counsel of the respondent no. The complainant made several demands, even sent the personal representative to the firm of applicant at Lucknow but they did not pay any head. So, on 29.11.2004, the complaint was filed whereupon the cognizance was taken as above. 8. It has been argued on behalf of the learned Counsel of the respondent no. 2 that even if the matter may be attributed to be of civil nature but together of civil liability it is also of a criminal nature matter because the applicant from the very beginning had intention of cheating to the complainant and in order to fulfill their intention of cheating, they came to Dehradun along with the proposal of supplying the lime by complainant to their firm. The learned Counsel on behalf of the complainant has relied on two precedents of Supreme Court. In case of Sri Krishna Agencies v. State of Andhra Pradesh & Another (2009) 1 SCC 69, High Court quashed the proceedings under section 138 of the Negotiable Instruments Act on the ground that the applicant had already taken recourse to arbitration proceedings which is obviously of a civil nature. Then Hon’ble Apex Court held that there can be no bar to simultaneous continuance of a criminal proceeding and a civil proceeding if the two arise from the separate cause of action. 9. Another precedent relied is N. Devindrappa v. State of Karnataka (2007) 5 SCC 228. In that case, the vendor sold a piece of land knowing well that he was not the owner of that land. So the Hon’ble Apex Court was of the view that where the criminal proceedings under section 420 IPC could have been initiated against the vendor, at the same time the civil proceedings also could have been initiated for recovery of money, etc. The Hon’ble Apex Court was of the view that civil and criminal liability can run parallel and are not dependent upon each other. 10. Undoubtedly, the settled position of the law is that the civil and criminal liability can run together and only for the reason that civil liability accrued then criminal proceedings cannot be barred to be initiated in the competent court. 11. 10. Undoubtedly, the settled position of the law is that the civil and criminal liability can run together and only for the reason that civil liability accrued then criminal proceedings cannot be barred to be initiated in the competent court. 11. In the instant case, what appears from the facts as has been discussed above, this Court is of the view that the transaction between the two businessmen was purely of a civil nature and it is squarely covered by the precedent which has been relied by the learned Counsel of the applicant. So, this way this petition has force and the cognizance order is liable to be quashed and the same is hereby quashed. Petition is allowed accordingly.