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Himachal Pradesh High Court · body

2012 DIGILAW 728 (HP)

Pawan Kumar v. J. R. Mehta

2012-10-16

KULDIP SINGH

body2012
Judgment Kuldip Singh, J. 1. This is a petition under Section 482 Cr.P.C. for quashing Complaint No. 44-2 of 2010 titled as M/s J.R.Mehta vs. Kumar Proprietor pending in the Court of learned Judicial Magistrate 1st Class, Court No.1, Rohru and further proceedings taken pursuant to the complaint. The petitioner has been summoned for offence under Section 406 IPC. 2. It has been stated that the petitioner is a Commission Agent of fruits at New Sabzi Mandi, Azadpur, Delhi. The respondent is the son of J.R.Mehta, who is an old and regular customer of the petitioner’s partner Jitender Lamba in another firm. As per the practice in the trade the growers take huge amounts as advance payments from the commission agents at Delhi before sending their crops for sale to them. Jitender Lamba introduced the respondent to the petitioner as a grower and recommended the business dealings with the respondent. 3. The procedure for sale of apples is by way of open auction at which different buyers bid for specific lots of the produce which are sent by the growers. The lot put up for auction is sold to the highest bidder on credit by the commission agent, who charges his commission on the sale from the grower on the gross sale price. The commission agents are required to incur expenses on the infrastructure etc. to remain in business. Immediately on the sale of apples, the growers take the payments of the crops from the commission agents, who sell the same on credit to the purchasers at the risk and cost of the commission agents. 4. The respondent contacted the petitioner in May, 2009 at New Sabzi Mandi Azadpur, Delhi and expressed his intention and desire to send apple crop to the petitioner for sale, both from his own orchard as well as from other orchards. The petitioner agreed to commence the business dealings with the respondent. 5. The respondent on 10.7.2009 came to the office of the petitioner at Delhi and requested for an advance of ` 2.00 lacs which was to be paid to the owner of the orchard whose crop had been taken on contract by the respondent. The petitioner paid ` 2.00 lacs as advance amount to the respondent as requested by him. 5. The respondent on 10.7.2009 came to the office of the petitioner at Delhi and requested for an advance of ` 2.00 lacs which was to be paid to the owner of the orchard whose crop had been taken on contract by the respondent. The petitioner paid ` 2.00 lacs as advance amount to the respondent as requested by him. The respondent again came to the office of the petitioner on 23.7.2009, 30.7.2009, 5.8.2009 and on his request, ` 3.00 lacs, ` 5.00 lacs and ` 3.00 lacs, respectively were paid to the respondent by the petitioner. Thus, before even a single case of apple had been sent for sale, the respondent took an advance of `13.00 lacs from the petitioner on the assurance that he would send his entire crop and the crops of other orchards taken by him on contract to the petitioner. 6. The respondent brought first consignment of apples for sale on 6.8.2009 of 438 cases which were sold by the petitioner at the best possible rate for `2,35,390/- by open auction at the rates prevailing in the market of the quality, grade of the apples sent by the respondent. The respondent on 11.8.2009 and 24.8.2009 sent some more cases of apples to the petitioner which were sold, the sale proceeds of these apples were duly credited to the account of the respondent after deducting the commission, freight and other expenses etc. 7. After sale of cases sent upto 24.8.2009, the sale amount of which amounted to about ` 7.00 lacs, the respondent again requested for additional amounts as advance from the petitioner. On 24.8.2009 an amount of ` 1.00 lac was paid in cash by the petitioner to respondent at Delhi through his employee Bobby on the asking of the respondent. Thereafter, an additional amount of ` 2.00 lacs was paid on 27.8.2009 and another additional amount of ` 3.00 lacs was paid by the petitioner to respondent. After receiving the aforesaid additional amounts, the respondent sent a few cases of apples, the sale proceeds of which amounted to approximately `3,60,000/- only. 8. The respondent on 16.9.2009 came to the office of the petitioner with a consignment of 401 cases and requested for a further advance of ` 4.00 lacs. He assured the petitioner that he would send 1000 to 1200 cartons of apples more before the end of the season. 8. The respondent on 16.9.2009 came to the office of the petitioner with a consignment of 401 cases and requested for a further advance of ` 4.00 lacs. He assured the petitioner that he would send 1000 to 1200 cartons of apples more before the end of the season. On the request of the respondent ` 4.00 lacs were paid to him by the petitioner on 16.9.2009. The consignment of 401 apple cases which the respondent had brought was sold on 17.9.2009 for an amount of `3,75,633/- after deducting freight, commission and expenses etc. The respondent had thus received total amount ` 23.00 lacs against the supply of total apples worth ` 14,39,319/-. 9. The respondent after receiving ` 4.00 lacs on 16.9.2009 did not visit the petitioner nor he sent any apple crop to the petitioner for sale. The attempt was made to contact the respondent on telephone, he evaded to attend the phone calls and subsequently showed his inability to send more apples for sale on one pretext or the other. The respondent however promised to send his apple crop next year for sale to the petitioner. He assured the petitioner that he would return the advance amount. 10. The respondent however did not return the advance amount received by him to the petitioner. The petitioner before commencement of the next apple season again contacted the respondent to send the apple crop of that year or to return the advance. The entire apple season of 2010 passed without the respondent sending even a single case of apples to the petitioner for sale nor he returned the advance. At the end of the apple season of the year 2010, the petitioner again tried to contact the respondent for refund of advance amounting to ` 8,60,681/- alongwith interest but without any result. The petitioner got issued notice dated 17.1.2011 to the respondent which was not replied. The petitioner filed Civil Suit against the respondent on 19.2.2011 for recovery of `11,44,705/- in the Court of learned District Judge, NW, Rohini. 11. The petitioner much after the filing of the suit received notice in the form of reply dated 16.2.2011 of respondent denying his liability to pay any amount to the petitioner, on the contrary claiming ` 4.00 lacs from the petitioner on the ground that the petitioner had allegedly sold the apples at a lesser price. 11. The petitioner much after the filing of the suit received notice in the form of reply dated 16.2.2011 of respondent denying his liability to pay any amount to the petitioner, on the contrary claiming ` 4.00 lacs from the petitioner on the ground that the petitioner had allegedly sold the apples at a lesser price. The petitioner also came to know from the reply that respondent had filed a complaint against the petitioner under Section 406 IPC at Rohru. 12. The petitioner appeared through his counsel in the criminal case even though he was not properly named and described in the complaint. The respondent has filed false and frivolous criminal complaint No. 44-2 of 2010 against the petitioner in the Court of learned Judicial Magistrate 1st Class, Court No.1, Rohru. The complaint is malafide, dishonest and is actuated with mischievous motive. It has been stated that nothing is due and payable by the petitioner to respondent. On the contrary, the respondent is liable to pay `8,60,681/- alongwith interest to petitioner on account of advance received by the respondent from the petitioner. 13. The respondent has cheated the petitioner and committed criminal breach of trust and has misappropriated the amount taken by him as advance from the petitioner. The respondent from September, 2009 to July, 2010 i.e. opening of the next apple season did not make any grievance regarding the apples sold by petitioner. He kept on assuring that either he would repay the advance money or would send apples for sale in the year 2010 for adjusting the outstanding amount. The petitioner did not receive notice dated 8.7.2010. The Court at Rohru has no jurisdiction to adjudicate and determine the criminal complaint as no part of cause of action has arisen within the jurisdiction of the Court at Rohru. The dispute if any is of civil nature and no criminal case is made out. On the basis of material on record, no case is made out for issuing process to the petitioner. 14. The respondent has contested the petition by filing reply. The preliminary objection of maintainability has been taken. It has been stated that the petition is counter-blast to the complaint filed by the respondent in the Court at Rohru. The petitioner has dishonestly and fraudulently mis-appropriated more than ` 4,00,000/- of the respondent. 14. The respondent has contested the petition by filing reply. The preliminary objection of maintainability has been taken. It has been stated that the petition is counter-blast to the complaint filed by the respondent in the Court at Rohru. The petitioner has dishonestly and fraudulently mis-appropriated more than ` 4,00,000/- of the respondent. In the apple season of 2009 the respondent had supplied 1791 apple cases to the petitioner for sale. The prevailing market rate of apple cases in Delhi in the year 2009 was between ` 1500/- to ` 3,000/- per box. The petitioner had assured the respondent at the time of transaction that apple cases of the respondent in no eventuality will be sold for not less than ` 1500/- per box. In case the apple cases of the respondent were sold at the rate of ` 1500/- per box even then the value of 1791 apple boxes comes to ` 27,00,000/- and after deducting the advance amount received from the petitioner, still more than ` 4,00,000/- are payable by the petitioner to the respondent. The petitioner has not supplied true and correct statement of account. 15. On merits, it has been stated that the respondent never visited the office of the petitioner in the apple season of 2009. The petitioner had visited the village of the respondent and requested the respondent to send his apple cases for sale to the petitioner, who would provide attractive rates for the apple cases. The total advance amount received by the respondent from the petitioner is `23,00,000/-. The statement of account and sale vouchers of other orchardists and contractors were falsely prepared by the petitioner. 16. The respondent had sent notice dated 8.7.2010 to the petitioner, who did not send any reply to the notice. The petitioner filed false case against the respondent just to save his liability. The respondent denied the remaining stand of the petitioner. In rejoinder, the petitioner reiterated his stand and denied the case projected by the respondent. 17. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that as per the trade practice, the petitioner in the year 2009 made advance payments to the respondent for supplying apple cases. The respondent supplied some apple cases, the payments were made to the respondent after deducting expenses. 17. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that as per the trade practice, the petitioner in the year 2009 made advance payments to the respondent for supplying apple cases. The respondent supplied some apple cases, the payments were made to the respondent after deducting expenses. The respondent did not supply the apple cases to petitioner to the extent of the advance payments received by the respondent from the petitioner. The respondent assured that in 2010 apple season he would send the apple cases to the petitioner and adjust the advance payments already received by him but he did not send apple cases to the petitioner in 2010 apple season. Thus, an amount of ` 8,60,681/- remained due and payable by the respondent to the petitioner towards the advance received by the respondent from the petitioner in the year 2009. The respondent did not pay this amount, therefore, petitioner has filed a suit for recovery against the respondent at Delhi. As a counter-blast to the stand of petitioner and to put pressure on the petitioner, the respondent has filed false and frivolous complaint against the petitioner at Rohru. The Court at Rohru has no jurisdiction. The dispute is of civil nature. On the basis of the material on record, no offence is made out against the petitioner for summoning him in the criminal case. 18. The learned counsel for the respondent has submitted that the Court at Rohru has jurisdiction, a part of cause of action has arisen within the jurisdiction of Rohru where the petitioner approached the respondent in the year 2009 for supplying apple cases to petitioner at Delhi. The petitioner promised to pay between ` 1,500/- to ` 3,000/- per apple box to the respondent. In the year 2009, the respondent had supplied 1791 apple cases to the petitioner and even if the value of per apple case is taken at the minimum ` 1,500/- as promised by the petitioner, in that case also the market value of 1791 apple boxes supplied by the respondent to the petitioner comes to ` 27,00,000/-. The respondent has received ` 23,00,000/- from the petitioner and therefore, the petitioner still owes over ` 4,00,000/-to the respondent which he has mis-appropriated. The petitioner has prepared false accounts and documents. The respondent has received ` 23,00,000/- from the petitioner and therefore, the petitioner still owes over ` 4,00,000/-to the respondent which he has mis-appropriated. The petitioner has prepared false accounts and documents. The suit filed at Delhi by the petitioner is to save his liability. The respondent has not been served in the suit. 19. The respondent has filed the complaint against the petitioner under Section 406 IPC. The record has been called from the Court below. The learned Sub Divisional Judicial Magistrate, Court No.1, Rohru on 26.8.2010 issued process to petitioner under Section 406 IPC. The respondent has taken the plea that the petitioner has not supplied true and correct statement of account, but the respondent has placed on record the sale proceeds of sale Nos. 187, 305, 306, 307, 447, 448, 529 and 545 of respondent from 6.8.2009 to 17.9.2009 Ex.CW-1/A to Ex.CW-1/M. The respondent has also placed on record the statement of account Ex.CW-1/N 1.4.2009 to 25.9.2009 of the respondent prepared by the petitioner indicating that the petitioner has sold 1785 cartons of respondent valuing ` 14,39,319/- and has paid ` 23,00,000/- during this period to the respondent showing that an excess amount of ` 8,60,681/-has been paid by the petitioner to the respondent. 20. The learned counsel for the petitioner has relied G.Sagar Suri and another vs. State of U.P. and others (2000) 2 SCC 636 where it has been held that jurisdiction under Section 482 of the Code has to be exercised with great care. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. The jurisdiction under Section 482 of the Code has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. 21. In Joseph Salvaraj A. vs. State of Gujarat and others (2011) 7 SCC 59 , the respondent No.4 complainant lodged an FIR on 5.9.2006 complaining that appellant has committed offence under Sections 406, 420, 506 (I) IPC. The Supreme Court has held as follows:- “In our opinion, the matter appears to be purely civil in nature. 21. In Joseph Salvaraj A. vs. State of Gujarat and others (2011) 7 SCC 59 , the respondent No.4 complainant lodged an FIR on 5.9.2006 complaining that appellant has committed offence under Sections 406, 420, 506 (I) IPC. The Supreme Court has held as follows:- “In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the appellant. It does not meet the strict standard of proof required to sustain a criminal accusation. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra v. State of U.P. (2009) 7 SCC 495 , relevant part thereof is reproduced hereinbelow: (SCC P.505, para 27) “27….A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.” 22. The Supreme Court in B.Suresh Yadav vs. Sharifa Bee and another (2007) 13 SCC 107 has held that for the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. 23. It has been held in Ashok Chaturvedi and others vs. Shitul H. Chanchani and another (1998) 7 SCC 698 that power under Section 482 of the Code has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised. 24. In Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others (1998) 5 SCC 749 , it has been held that summoning of an accused in a criminal case is a serious matter. 24. In Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others (1998) 5 SCC 749 , it has been held that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. It has been held that the Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 25. The learned counsel for the petitioner has submitted that the complaint is hit by delay and laches. The apples were supplied in 2009 apple season, the complaint has been filed on 31.7.2010 after about one year of 2009 apple season. The learned counsel for the petitioner has relied Dilawar Singh vs. State of Delhi (2007) 12 SCC 641 , where it has been held that in criminal trial one of the cardinal principles for the court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why, if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. 26. CW-1 Balbir Singh, Proprietor of J.R. Mehta Orchard has stated that in the year 2009, Proprietor of Kumar Apple Fruit Commission Agent, Delhi came to his village Bral and asked him to supply apple crop to his firm on rates better than market rates. 26. CW-1 Balbir Singh, Proprietor of J.R. Mehta Orchard has stated that in the year 2009, Proprietor of Kumar Apple Fruit Commission Agent, Delhi came to his village Bral and asked him to supply apple crop to his firm on rates better than market rates. He believed the proprietor and supplied 1791 apple cases to accused, who sent sale vouchers Ex.CW-1/A to CW-1/M showing that the sale of all the cases comes to ` 14,39,319/- The accused intentionally sold ‘Gud’ apples for ` 400/- to ` 1300/- per case, whereas the accused had promised minimum ` 1500/- per case of ‘Gud’ apple. In Delhi market in the year 2009 the rate was ` 1500/- to ` 3000/- per case. He had sent best quality apples to the accused. At the rate of even ` 1500/-per case, the market value of 1791 apple cases sent by him to accused comes to `27,00,000/- and after adjusting ` 23,00,000/- advance which accused had paid to him still `4,00,000/- are payable by accused to him. He had issued notice Ex.CW-1/O. The accused has cheated him and misappropriated ` 4,00,000/-. The accused has intentionally sold apples at the rate of ` 400/-to ` 1300/- per case. 27. CW-2 Tapinder Singh has stated that proprietor of Kumar Apples in the year 2009 came to his village. The accused went to village Bral also. The accused requested to supply the apple crop to him and he would pay at the rate of ` 1500/- to ` 3000/- per case. In the year 2009 he and his co-villagers had sold ‘Gud’ apples at the rate of `1000/- to ` 3000/- per case. In notice Ex.CW-1/O dated 8.7.2010 it has been stated that in the sale proceeds of the petitioner, the sale has been shown between ` 400/- to `1300/- per case whereas in the year 2009, the prevalent market rates in Delhi market were between ` 1500/- to ` 3000/-per case. 28. The respondent has taken the stand that sale proceeds and statement of account sent by the petitioner to respondent are not correct. 28. The respondent has taken the stand that sale proceeds and statement of account sent by the petitioner to respondent are not correct. It appears from the statement of CW-1 and notice Ex.CW-1/O that the respondent has disputed the rates of apples shown in sale proceeds Ex.CW-1/A to Ex.CW-1/M. The respondent has not specifically stated that the quality of apples stated in the sale proceeds Ex.CW-1/A to Ex.CW-1/M are incorrect and no such apples were sent by the respondent to the petitioner or respondent had sent only one ‘Gud’ quality apples to the petitioner. The sale proceeds placed on record by respondent not only refer to different qualities of apples but also different sizes of apples. It has been contended on behalf of the petitioner that the rate of apple depends upon the size, quality and type of apple. It is common knowledge that the apples have different qualities, types and sizes. There is nothing that all types of apples have only one grade. This has not even denied on behalf of the respondent. There is nothing on record to show except bald statements of CW-1 and CW-2 what types, qualities and sizes of apples were sent by the respondent to the petitioner in the year 2009. 29. It does not emerge from the statement of CW-1 that he had sent only ‘Gud’ apples and none-else to the petitioner in the year 2009. The respondent except bald statements of CW-1 and CW-2 has placed nothing on record to show that in Delhi in the year 2009 even rate of ‘Gud’ apple was between ` 1500/- to ` 3000/- per case. The respondent has not stated that he had not sent to petitioner royal, red royal, richard, red gold, golden etc. apples of different sizes and qualities as stated in sale proceeds Ex.CW-1/A to Ex.CW-1/M. The rates of different qualities of apples stated in sale proceeds Ex.CW-1/A to Ex.CW-1/M in the year 2009 have not been specifically disputed by the respondent in his statement when he appeared as CW-1. 30. The respondent in his reply has stated that 1791 apple boxes were supplied to the petitioner in the year 2009. The difference of apple cases as per the statement of account placed on record by the respondent and as per the stand taken in the reply is only of 6 cases. 30. The respondent in his reply has stated that 1791 apple boxes were supplied to the petitioner in the year 2009. The difference of apple cases as per the statement of account placed on record by the respondent and as per the stand taken in the reply is only of 6 cases. The respondent has not placed on record documentary proof how many apple cases he had sent to petitioner in the year 2009. There is no reason to disbelieve the statement of account so far the quantity of apple boxes mentioned in Ex.CW-1/N. Therefore, it cannot be said that the statement of account Ex.CW-1/N supplied by the petitioner to the respondent so far quantity of apple cases is concerned, is incorrect. There is no dispute of the amount received by the respondent from the petitioner in the year 2009. The admitted case of the parties is that respondent has received ` 23,00,000/- from the petitioner in the year 2009. The petitioner has given the sale proceeds of the apple cases of the respondent in Ex.CW-1/A to Ex.CW-1/M whereas the respondent is claiming the rate of his apple cases between ` 1500/- to ` 3000/- and the minimum at the rate of ` 1500/- per apple case. According to the respondent, the market value of his apple cases comes to around ` 27,00,000/- and after adjusting `23,00,000/-, still the petitioner is liable to pay about ` 4,00,000/- to the respondent. 31. On the contrary, the stand of the petitioner is that after adjusting the expenses the apple cases of the respondent were sold for ` 14,39,319/- and the respondent has received an excess amount of ` 8,60,681/-. The respondent has neither paid this amount nor sent any apple cases to the petitioner for adjusting the excess amount of ` 8,60,681/-. The petitioner has already filed suit for recovery against the respondent which is pending at Delhi. The petitioner has also taken the objection of jurisdiction of the Court at Rohru to proceed with the criminal case. At this stage, there is no material on record except the preliminary evidence, complaint and perusal of preliminary evidence and complaint does not exclude the jurisdiction of Rohru Court. 32. The dispute which emerges now is regarding the rate of apple cases of the respondent sold by the petitioner in the year 2009. At this stage, there is no material on record except the preliminary evidence, complaint and perusal of preliminary evidence and complaint does not exclude the jurisdiction of Rohru Court. 32. The dispute which emerges now is regarding the rate of apple cases of the respondent sold by the petitioner in the year 2009. The petitioner has supplied sale proceeds, even paid the amount of sale proceeds to the respondent in the year 2009. The respondent remained silent. There is nothing on record that till 8.7.2010 respondent ever disputed or questioned the stand of the petitioner nor there is anything on record that before 8.7.2010 the respondent ever took the stand that the petitioner has committed an act of mis-appropriation. The stand of the petitioner cannot be rejected altogether when he has submitted that the complaint has been filed by the respondent when he came to know that petitioner would file a suit for recovery against him. There is nothing on record that in fact 1785 or 1791 apple cases of respondent were actually sold at the rate between 1500/- to ` 3000/-per case. The civil dispute between the parties has been given the cloak of criminal proceeding by respondent by filing complaint against the petitioner. On the basis of material on record no offence under Section 406 IPC is made out. The learned Magistrate has erred in summoning the petitioner for offence punishable under Section 406 IPC. The dispute between the parties is purely of a civil nature and in these circumstances, the filing of the complaint by the respondent against the petitioner is the abuse of process of law which cannot be permitted. 33. In view of above, the petition is allowed and order dated 26.8.2010 passed by Sub Divisional Judicial Magistrate, Court No.1, Rohru summoning petitioner under Section 406 IPC is set-aside and Criminal Complaint No. 44-2 of 2010 titled as M/s J.R.Mehta vs. Kumar Proprietor pending in the Court of learned Judicial Magistrate 1st Class, Court No.1, Rohru is quashed. The pending application, if any, is also disposed of.