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2014 DIGILAW 520 (PAT)

M. S. Saxena v. State of Bihar

2014-04-29

ADITYA KUMAR TRIVEDI

body2014
JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–Petitioner has asked for the following relief:— “That this petition is directed for issuance of a writ in the nature of certiorari for quashing Complaint Case No. 1134 (C) 2001 and the Cognizance dated 31.07.2001 taken under Section 406/120B IPC against the respondent and other two persons named in the Complaint petition who are foreign Citizens.” 2. In spite of notice, private respondents did not chose to appear nor learned State counsel made his appearance on the date of hearing, as a result of which only the petitioner has been heard. 3. Complaint Petition No. 1134(C)/2001 was filed by Front Line Industry Private Limited through its Director (Respondent No.2) against M/S Water Guard Cable Products Private Limited, MS Saxena, Administrative Officer as well as Director of Water Guard Cable Products Private Limited, Mathew M. Freeman, President and Chief, Water Guard Cable Products Private Limited, Mr. Leon Varkaraayenburg President, Water Guard Cable Products Private Limited showing the date of occurrence since 25th of September 2000 for offences punishable under Sections 406, 420 and 120B of the IPC alleging inter alia for manufacturing of cable compounds, there was an agreement amongst the parties and as per Clause-13 of Tolling Agreement the accused had to pay Rs. 3, 50,000/- per month to the complainant as minimum guaranteed quantity of 100 Metric Tons against production of WTT Grade P-90 Filling Compound @ Rs. 3.50. per K.G. which the accused never paid and for that repeated requests were made orally as well as in written. 4. It has further been averred that during intervening period accused utilized telephone of the Complainant-company and the bill against the utilization has also not been paid. After totaling both the amounts, it accrued to Rs.24,26,761/- and so, the complainant alleged that apart from misappropriation, the company (accused) had also cheated. 5. It has been submitted on behalf of the petitioner that the complaint petition happens to be misconceived because of the fact that even on plain reading of the complaint petition, it is evident that by making non payment the minimum security amount happens to be violation of Clause-13 of the Tolling Agreement which did not attract application of any sort of criminal prosecution. In likewise manner, It has also been submitted that mere use of telephone without making payment for bill accrued thereupon is also out of purview of criminal prosecution. 6. In likewise manner, It has also been submitted that mere use of telephone without making payment for bill accrued thereupon is also out of purview of criminal prosecution. 6. Furthermore, it has been submitted on behalf of the petitioner that the complainant-company cheated the bank from where it had borrowed a huge amount as loan and with a dishonest intention not to repay the same, filed this case and that is the reason behind that the allegation is not at all supported with any document which could at least disclose that there was production as well as particular telephone number was under use of petitioner & others for particular period standing in the name of complaint which is itself evident from the S.A. of the complainant as well as statement of the witness. So submitted that the pendency of complaint petition along with order of cognizance dated 31.07.2001 directing the petitioner to be answerable for an offence punishable under Sections 406, 120B of the IPC is not at all legally maintainable. 7. The exercise of writ jurisdiction, more particularly, relating to quashing of the prosecution should not be invoked in routine manner rather it should be under the guise of circumspection as well as being exceptional one. 8. In a decision AIR 1992 SC 604 State of Hariyana & Ors. Vs. Bhajan Lal & Ors. The Hon’ble Apex Court has identified following categories including others wherein prosecution can be quashed and those are :— “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 9. Now coming to the case in hand, cognizance has been taken under Sections 406, 120B of the IPC. 406 IPC is the penal provision with regard to criminal breach of trust having been defined under Section 405 of the IPC. For better appreciation 405 IPC is incorporated herein below:— 405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". 10. From the narration of the complaint petition, it is evident that neither there is entrustment nor dominion over the property and on account thereof, dishonestly misappropriating the same does not arise. 10. From the narration of the complaint petition, it is evident that neither there is entrustment nor dominion over the property and on account thereof, dishonestly misappropriating the same does not arise. In likewise manner, Section-120B IPC happens to be a penal provision prescribed for criminal conspiracy which is found defined under Section 120A of the IPC which is being reproduced for better appreciation:— 120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. 11. From the allegation as well as from the statement of the witnesses including the S.A., it is evident that neither there happens to be prima facie material on the record to suggest that accused persons indulged in illegal act nor have they indulged in illegal agreement to do illegal act. 12. From perusal of the averments of the complaint petition, it is evident that it happens to be mere non payment of minimum security amount as per Clause-13 of the Tolling Agreement as well as non payment of telephone bill. The complainant had not disclosed that which telephone number was existing in the name of complainant which was used by the accused and if so, by whom and for which period and at least prima facie material, that means to say to suggest that the aforesaid telephone number was ever used. 13. In likewise manner, mere non payment of minimum agreed amount neither comes under entrustment nor dominion because of the fact that it was in lieu of terms so agreed amongst the parties and non payment thereof, happens to be violation of the terms of the agreement and on account thereof, inception of criminal prosecution has ventilated the way of civil cause apart from the fact that there happens to be complete absence of material whether the complainant company began production. 14. Times without number, it has been decided by the Hon’ble Apex Court that violating terms of agreement will attract civil as well as criminal prosecution. 14. Times without number, it has been decided by the Hon’ble Apex Court that violating terms of agreement will attract civil as well as criminal prosecution. It is the allegation put under complaint petition that has to be perceived whether it had made out an ingredient of particular penal provision justifying criminal prosecution or it is a civil cause on account of plenary violation in terms of agreement as has been laid down by the Hon’ble Apex Court in the case of Thermax Ltd. Vs.. K.M. Johny as reported in (2011) 13 SCC 412 as well as in the case of Ravindra Kumar Madhanlal Goenka Vs.. Rugmini Ram Raghav Spinners (P) Ltd. as reported in (2009) 11 SCC 529 . 15. Consequent thereupon, the Complaint Petition No. 1134(C)/2001 along with cognizance dated 31.07.2001 passed by Chief Judicial Magistrate, Patna is hereby quashed. Petition is allowed. ?