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2012 DIGILAW 286 (JHR)

Kochukunju Daniel v. State of Bihar

2012-02-23

H.C.MISHRA

body2012
ORDER H.C. MISHRA By Court:-Heard learned counsel for the petitioners and learned counsel for the respondent State. On 22.2.2012, no one had appeared on behalf of private respondent No. 2 Jaydeo Panja, in spite of repeated calls and as such, the case was fixed for today. Today, learned counsel for private respondent appears and submits that he has no instructions in the matter. 2. This writ petition has been filed by the petitioners for quashing the F.I.R. and the further proceedings in connection with Dhanbad Sadar P.S. Case no. 492 of 2000 registered under Sections 406, 409, 420 and 120B of the Indian Penal Code. It may be stated that a Complaint Case No. 902 of 2000 was filed by the private respondent No. 2 against the petitioners in the Court of learned Chief Judicial Magistrate, Dhanbad, who in turn, by order dated 24.8.2000 had forwarded the same for institution of police case, on the basis of which, Dhanbad Sadar P.S. Case no. 492 of 2000 was instituted and investigation was taken up. 3. From perusal of the complaint petition, it appears that there were business terms between the complainant private respondent No. 2 and the petitioners, as the complainant is a wholesale dealer of medicines and the petitioners are the Officials of M/S Ranbaxy Laboratories Ltd. who were supplying medicines of their company to the complainant. It is alleged that medicines worth Rs. 3,62,231.13/-were supplied by the petitioners to private respondent and the entire price of the consignment, which included the Sales Tax payable thereon under the provisions of the Bihar Finance Act, was paid to the accused persons, but the statutory Form IX-C was not delivered to the purchasing dealer i.e., the complainant, evidencing the factum of payment of Sales Tax, so as to enable the purchasing dealer to claim exemption before the Sales Tax Authorities. It is alleged that the accused persons had been withholding the said statutory Form IX-C and it was not given to the complainant even after repeated requests, due to which, the complainant was made to suffer wrongful loss, as he was made liable for payment of Sales Tax again for the same transaction, in spite of the fact that the tax had already been paid by him. 4. 4. Learned counsel for the petitioners has submitted that from the pleadings made in the complaint petition, it is apparent that there were business terms between the parties and in the facts of this case the liability, if any, may be only of civil nature. It is submitted that here can be no criminal liability against the petitioners even if all the allegations made in the complaint petition are accepted on its face value and as such, the institution and continuation of the criminal proceeding against the petitioners shall be abuse of the process of law. In support of his contention, learned counsel has placed reliance upon a decision of the Supreme Court of India in the case of Anil Ritolla @ A.K.Ritolia Vrs. State of Bihar & Anr., as reported in 2004 (4) JLJR 176 (SC), wherein where, in the similar circumstances, statutory Form IX-C was not supplied to the purchasing dealer, the Apex Court quashed the cognizance taken against the accused taking the view that payment of sales tax is governed by the provisions of the Bihar Sales Tax Act and Rules framed thereunder. The Rules prescribes the procedure required to be taken in the event of non-receipt of Form IX-C and a dealer who had not been supplied with the prescribed form by the supplier, may take recourse to the remedies provided for under the Rules. In the said case, the law has been laid down by the Apex Court as follows:- “10. The transactions between the parties were for supply of goods. Admittedly, ..... and except supply of Form IX-C other terms and conditions of the contract had been complied with by them. Per se, supply or non-supply of Form IX-C of the Bihar Sales Tax Rules had nothing to do with the transactions for which the parties had entered into a contract. Non-issuance of the said form ex-facie cannot give rise to commission of any offence. If the appellant or their principal were obligated to act under a statute and failed to perform their duties as indicated hereinefore, as the statute itself provides for a remedy, ordinarily the same is required to be taken recourse to. In any event, the second respondent could have filed a suit for damages. There cannot be any doubt or dispute whatsoever that an offence can be committed even if the parties had entered into a commercial transaction. In any event, the second respondent could have filed a suit for damages. There cannot be any doubt or dispute whatsoever that an offence can be committed even if the parties had entered into a commercial transaction. In Rajesh Bajaj (supra) this Court held so. But it is equally well settled that the allegations contained in the complaint petition must, prime facie, show inducement of the victim by the accused by making a representation. In a case of this nature, we are of the opinion that the appellant had the requisite intention. 11. The question came up for consideration before this Court recently in Indian Oil Corporation Vs. NEPC Indian Ltd. & ors. [ (2006) 6 SCC 736 ] wherein, upon consideration of a large number of decisions, it was held: “The essential ingredients of the offence of “cheating” are: (I) deception of a person either by making a false or misleading representation or by other action or omission, (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that persons in body, mind, reputation or property.” It is not a case where the appellants can be said to have induced the respondent to enter into a transaction so as to deceive them with a view to cause unlawful losses to them and to make unlawful gain for themselves.” (Emphasis supplied). Placing reliance on the aforesaid decision, learned counsel for the petitioners has submitted that it is a fit case, in which, the entire criminal proceeding be quashed. 5. Learned counsel for the respondent State has submitted that in the facts of this case and on the basis of allegations made in the compliant petition, prime facie case is made out against the petitioners. 6. 5. Learned counsel for the respondent State has submitted that in the facts of this case and on the basis of allegations made in the compliant petition, prime facie case is made out against the petitioners. 6. After having heard learned counsels for both the sides and upon going through the complaint petition brought on record, I find that there is nothing in the entire complaint petition to show that the complainant had availed the statutory remedy provided under the statute, nor is there anything to suggest that there was any fraudulent or dishonest inducement by the petitioners with an intention to deceive the complainant, for the transaction in question. In my considered view, the case of the petitioners is fully covered by the decision of the Apex Court in the case of Anil Ritolla (supra), wherein, it has been specifically held that in the event of non-receipt of statutory Form IX-C, the purchasing dealer may take recourse to the remedies provided under the Rules, and the non-issuance of the said form ex-facie cannot give rise to commission of any offence. In the given case, there can be no criminal liability of the petitioners and the continuation of the criminal proceeding against them is sheer abuse of the process of law, apart of causing unnecessary harassment to them, though there may be civil liability of the petitioners. 7. The record shows that by order dated 23.2.2001 passed in this case the proceeding in Dhanbad Sadar P.S. Case no. 492 of 2000 was stayed. In view of the aforementioned discussions, the stay order passed in this case by order dated 23.2.2001, is, hereby, made absolute and the F.I.R. and the further proceedings against the petitioners in Dhanbad Sadar P.S. Case no. 492 of 2000, pending in the Court of the Chief Judicial Magistrate, Dhanbad, are hereby, quashed and this writ petition is, accordingly, allowed.