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2015 DIGILAW 1018 (GAU)

Dhiraj Kumar Sarkar v. Debabrata Das

2015-08-13

C.R.SARMA

body2015
JUDGMENT : C.R. Sarma, J. 1. By this application, filed under Section 482 Cr.P.C., the petitioner, who is one of the accused person, in Complaint Case No. 676/2012, pending before the learned Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar, has prayed for quashing the said proceeding on the ground that the allegations made against the petitioner do not constitute a criminal offence and that he is no way involved with the alleged offence. The complainant, who had business relation with the petitioner and other accused persons, used to purchase goods from the accused No. 2 through the petitioner and accordingly used to pay money in advance to the accused persons through his stockiest i.e. the petitioner and accordingly, the petitioner, after receiving the goods, supplied by accused No. 2, used to send the same to the complainant. In the said way, the transaction, between the parties, continued w.e.f. 07.05.2011 till 18.05.2011 without any difficulty. 2. The complainant deposited another amount of Rs. 18,62,904/- in two installments i.e. Rs. 8,81,954/- and Rs. 9,91,200/-, with the petitioner, towards supply of goods, but the complainant did not receive the goods against the said payment. Therefore, the complainant approached the petitioner and the petitioner had assured the complainant that due to certain difficulty with the Company i.e. accused No. 2, the goods could not be supplied and that the goods would be supplied without further delay. 3. However, the complainant failed to receive the goods, as agreed to by the petitioner. According to the complainant, the accused Nos. 2 and 3, by writing a letter, acknowledged the receipt of the money through the petitioner and assured that in the event of failure to dispatch the product (i.e. goods), they would refund the money through cheque. 4. As alleged by the complainant, despite repeated approach, made by him, the accused persons refused to return the amount, taken as advance and threatened the complainant with dire consequences. 5. Aggrieved by the said action, on the part of the accused persons, the respondent filed a complaint before the learned SDJM, Sankardev Nagar, Hojai. On receipt of the said complaint, the learned SDJM examined the complainant and his witnesses and took cognizance of offence under Sections 406/420/506/34 IPC and issued process to the accused persons. 6. Aggrieved by the said proceeding, the accused person No. 1, as petitioner, has come up with this application under Section 482 Cr.P.C. 7. On receipt of the said complaint, the learned SDJM examined the complainant and his witnesses and took cognizance of offence under Sections 406/420/506/34 IPC and issued process to the accused persons. 6. Aggrieved by the said proceeding, the accused person No. 1, as petitioner, has come up with this application under Section 482 Cr.P.C. 7. I have heard Mr. A. Dasgupta, learned Sr. Counsel, assisted by Ms. B. Das, learned Counsel, appearing for the petitioner and Mr. P.C. Dey, learned Counsel, appearing for the respondent. 8. Mr. A. Dasgupta, learned Sr. Counsel for the petitioner, referring to the allegations, made in the complaint, has submitted that from the beginning of the transaction, as per contract, goods were supplied to the complainant against the payment, received from him and that due to certain difficulty with the Company, the goods in respect of the last payment i.e. deposit of Rs. 18,62,904/-, as claimed by the complainant, goods could not be supplied and that the accused persons, more particularly, the accused Nos. 2 and 3, by writing letter to the complainant, acknowledged that they had received the payment through the petitioner and that they would supply the goods or refund the money received by them. In view of the said assurance, the learned Sr. Counsel for the petitioner has submitted that there was no dishonest or fraudulent intention at the beginning of the transaction and that failure to supply the goods, after receiving the payment, can not be sufficient to constitute an offence under Sections 406 and 420 IPC. 9. It is further submitted that the allegation raised by the complainant is truly a civil dispute and that there is no ingredients of any criminal offence. It is also submitted that though the complainant has made the allegation of threat, there is nothing to show as to what type of threat was given, who had given the threat and on which date the said threat was given. Therefore, it is submitted that the said allegation of threat can not be sufficient to hold that the petitioner had committed the offence under Section 506 IPC. 10. In view of the above, the learned Sr. Therefore, it is submitted that the said allegation of threat can not be sufficient to hold that the petitioner had committed the offence under Section 506 IPC. 10. In view of the above, the learned Sr. Counsel for the petitioner, has submitted that the allegations, made in the FIR, do not reveal the ingredients of the offences under Sections 406/420/506 IPC and as such, the continuance of the said proceeding, against the petitioner, will amount to abuse of process, for which quashing of the proceeding is necessary to prevent abuse of process. 11. In support of his contention, the learned Sr. Counsel for the petitioner has relied on the following decisions: "(i) Hridaya Ranjan Prasad Verma & Ors. v. State of Bihar & Ann, reported in (2000) 4 SCC 168 ; (ii) V.Y. Jose & Anr. v. State of Gujrat & Anr, reported in (2009) 3 SCC 78 ; (iii) Devendra & Ors. v. State of Uttar Pradesh & Anr., reported in (2009) 7 SCC 495 ; and (iv) Vir Prakash Sharma v. Anil Kumar Agarwal & Anr., reported in (2007) 7 SCC 373 ." 12. Refuting the said argument, advanced by the learned Sr. Counsel for the petitioner, Mr. P.C. Dey, learned Counsel for the respondent, referring to the allegations, made in the complaint, has submitted that, in the complaint, it has been specifically alleged that the accused persons, with dishonest intention to criminally misappropriate the amount, advanced by the complainant, refused to refund the said amount. It is also submitted that, though the accused No. 2 had sent a post dated cheque in favour of the accused No. 1 towards the repayment of the money, the petitioner failed to return the money taken from the complainant 13. The learned Counsel for the respondent has submitted that the allegations, made in the complaint, prima-facie reveals the ingredients of the offences under Sections 420/406/506 IPC and as such, there is no sufficient ground to interfere with the proceeding. It is submitted that existence of a civil dispute and in availability of relief in civil Court, cant be bar for a criminal prosecution. 14. In support of his contention, the learned Counsel for the respondent has relied on the following decisions: "(i) Ravindra Kumar Madhanlal Goenka & Anr. It is submitted that existence of a civil dispute and in availability of relief in civil Court, cant be bar for a criminal prosecution. 14. In support of his contention, the learned Counsel for the respondent has relied on the following decisions: "(i) Ravindra Kumar Madhanlal Goenka & Anr. v. Rugmini Ram Raghav Spinners Private Limited, reported in (2009) 11 SCC 529 ; (ii) Kamaladevi Agarwal v. State of W.B. & Ors., reported in (2002) 1 SCC 555 ; and (iii) Mridul Kumar Saikia v. Jiban Saha, reported in 2012(5) GLT 1." 15. Having heard the learned Counsel, appearing for both the parties, I have carefully perused the allegations, made in the complaint It is settled law that if the allegations, made in the FIR or complaint, as the case may be, reveal a prima-facie case, constituting an offence, no interference, under Section 482 Cr.P.C. is called for. The power under Section 482 Cr.P.C. is to be exercised to prevent abuse of process of law and to protect the accused person from unnecessary harassment. Whether the allegations made in the complaint or FIR are true or false, is a matter of fact to be decided at the time of trial. Prima facie existence of the ingredients of the offence is sufficient to proceed with criminal prosecution. 16. In view of the above principle, we are required to examine as to whether the allegations, made in the complaint, disclose the ingredients of the offences under Sections 420/406/506 IPC, for which, cognizance has already been taken by the learned SDJM. 17. As revealed from the allegations, made in the complaint it is found that there existed commercial transaction between both the parties. The petitioner acted as the stockiest of accused No. 2, who used to supply goods to various purchasers. The complaint, as purchaser, approached the accused No. 2 through the petitioner by making payment through the petitioner and the accused No. 2 also continued to supply goods against advance payment received through the petitioner and thus, the said business transaction continued w.e.f. 07.05.2011. 18. As alleged by the complainant, an amount of Rs. 18,62,904/- was received by the petitioner on behalf of the accused No. 2 towards supply of goods but no supply was made in respect of the said payment. The complainant at paragraph No. 14 of the complaint, has averred that the accused Nos. 18. As alleged by the complainant, an amount of Rs. 18,62,904/- was received by the petitioner on behalf of the accused No. 2 towards supply of goods but no supply was made in respect of the said payment. The complainant at paragraph No. 14 of the complaint, has averred that the accused Nos. 2 and 3 i.e. suppliers had informed the complainant that they had received the advance payment through the petitioner and that they could not dispatch the product due to certain difficulty of the Company. They also assured that they would supply the said goods or refund the money. 19. From the above statement, made by the complainant himself, it is clear that whatever amount was received by the petitioner was remitted to the supplier i.e. accused No. 2 and no amount was retained by him. His duty was only to remit the money received from the complainant, to the supplier and deliver goods to the complaint as and when same is received from the said supplier i.e. accused No. 2. 20. In the case of Hridaya Ranjan Prasad Verma and Others (Supra), the Supreme Court observed that mere breach of contract can't give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. It has also been observed that mere failure to keep up promise subsequently can not constitute the offence of cheating and that to hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. 21. In the case of V.Y. Jose and Another (Supra), the Supreme Court observed that although breach of contract per se would not come in the way of initiation of a criminal proceeding, there can't be any doubt whatsoever that in the absence of the averments, made in the complaint petition, wherefrom the ingredients of an offence can be found out, the Court should not hesitate to exercise its jurisdiction under Section 482 Cr.P.C. 22. In the case of Devendra and Others (Supra), the Supreme Court observed in case of a dispute between the parties constituting 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. 23. From the above, it appears that in order to hold a person guilty of the offence, as defined under Section 415 IPC, punishable under Section 420 IPC, allegation of dishonest or fraudulent intention, at the time of beginning of the initial transaction must be there. In the absence of such intention, at the beginning of the transaction, will not constitute the offence under Section 420 IPC. 24. In the case of Mridul Kumar Saikia (Supra), there was a contract for supplying of cylinder and accordingly, after receiving the payment towards the supply of cylinders, the accused person failed to supply the cylinders. The complainant filed a complaint alleging commission of offences under Sections 420/406/427 IPC. A learned single Judge of this Court quashed the proceeding holding that, in the absence of allegation of dishonest intention, the criminal proceeding under Section 420/406/427 IPC can't be maintained. In deciding the said case, the learned single Judge also observed that if a person is accused to have committed an offence, under Section 406 IPC, in relation to a transaction, he cannot, in one and the same breath, be said to have committed the offence, under Section 420 IPC, in relation to the same transaction. 25. In the case of Ravindra Kumar Madhanlal Goenka and Another (Supra), the Supreme Court observed that the nature and scope of a civil proceeding are different from a criminal proceeding and that mere fact that the complaint relates to commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceeding. The Supreme Court further observed that the test is whether the allegations in the complaint disclose a criminal offence or not. 26. As held in the said case, in order to prosecute a person in criminal offence, the ingredients of the alleged offence must be in existence. 27. In the case of Kamaladevi Agarwal (Supra), the Supreme Court observed that in existence of a prima-facie case constituting an offence, no interference under Section 482 Cr.P.C. is warranted. 26. As held in the said case, in order to prosecute a person in criminal offence, the ingredients of the alleged offence must be in existence. 27. In the case of Kamaladevi Agarwal (Supra), the Supreme Court observed that in existence of a prima-facie case constituting an offence, no interference under Section 482 Cr.P.C. is warranted. 28. In view of the said decisions and the principles, laid down therein, there is no difficulty in understanding that in the absence of the ingredients of the offence, as alleged in the complaint or the FIR, as the case may be, no criminal proceeding can be maintained against the accused person. 29. As held in the case of Hridaya Ranjan Prasad Verma and Others (Supra) and V.Y. Jose and Another (Supra), to constituted an offence under Section 420 IPC, existence of dishonest and fraudulent intention at the beginning of the transaction must exist and specific averment of such intention must be there in the complaint or the FIR. In the present case, it is found that since beginning of the transaction, the said commercial transaction continued smoothly. There is no averment, in the complaint, that at the beginning of the transaction the accused petitioner had any dishonest or fraudulent intention to cheat the complainant. Therefore, the ingredient of the offence under Section 420 IPC is found to be missing. 30. That apart, in view of the communication, made by the accused Nos. 2 and 3, informing that they had received the money through the petitioner, it can't be held that the petitioner had retained and misappropriated the money, received from the complainant. 31. From the allegations, made in the complaint, it is found that whatever money was received by the petitioner, from the complainant, was remitted to the accused No. 2 as per the contract and no amount was retained by him. Therefore, the question of entrustment and misappropriation of money by the petitioner is found to be baseless. 32. Regarding the offence under Section 506 IPC, the allegation made by the complainant is vague. The complainant has not stated as to on which date and time, who had threatened him. He has also not averred as to in what matter the threat was made. Therefore, the said bald statement can't be sufficient to drag a person to the Court to face criminal trial. 33. The complainant has not stated as to on which date and time, who had threatened him. He has also not averred as to in what matter the threat was made. Therefore, the said bald statement can't be sufficient to drag a person to the Court to face criminal trial. 33. In view of the above, considering entire aspect of the matter, I find that no prima facie case under Section 406/420/506 IPC has been made out against the present petitioner. Therefore, I find sufficient merit in this petition, requiring interference, to prevent abuse of process and to protect the petitioner from unnecessary harassment. Hence, this criminal petition is allowed. 34. The proceeding in Complaint Case No. 676/2012, pending before the learned Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar, so far it relates to the present petitioner, is quashed. Return the LCR.