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2015 DIGILAW 37 (ALL)

UPENDRA KUMAR SHARMA v. STATE OF U. P.

2015-01-09

VISHNU CHANDRA GUPTA

body2015
JUDGMENT Hon’ble Vishnu Chandra Gupta, J.—By means of this petition, under Section 482 of Code of Criminal Procedure (In short ‘’Cr.P.C.’), petitioner Upendra Kumar Sharma sought relief for quashing the proceedings of Criminal Case No. 4230 of 2012 (Firm Shri Shyam Associates v. Upendra Kumar Sharma), under Sections 406, 419, 420 IPC, Police Station Kotwali Nagar, District Bahraich pending in the Court of learned Chief Judicial Magistrate, Bahraich alongwith summoning order dated 22.2.2013 passed by learned Magistrate Bahraich. 2. Brief facts for deciding this petition are that the opposite party No. 2 Firm Shri Shyam Associates through its partner Atul Kumar Goyal lodged a criminal complaint against the petitioner, who is doing his business in the name and style of Akshtam Marketing, Marketing Consultant, with the allegations that petitioner is the distributor of Goa Gutka and Pan Masala of Northern-Eastern zone of India. The petitioner appointed the opposite party No. 2 as super stockiest in the month of July, 2010 for selling Goa Gutka and Pan Masala in the State of U.P. For doing the aforesaid business, the petitioner demanded security money from the opposite party No. 2 to deposit the same with the Company of Goa Gutka and Pan Masala, Meenakshi Food Products Pvt.Ltd. On the aforesaid demand, the opposite party No. 2 gave Rs. 2,51,000/- through Cheque No. 518676 of Bank of Baroda dated 30.7.2010 and Rs. 2,50,000/- through Cheque No. 033301 of HDFC Bank dated 30.7.2012 (probably 30.7.2010) to the petitioner as security money. Thereafter, the petitioner again demanded security money to deposit the same with the Company and the opposite party No. 2 gave him Rs. 25,00,000/- through Cheque No. 702576 of Bank of Maharashtra and Rs. 20,00,000/- through Cheque No. 702577 of Bank of Maharashtra on 21.8.2010. Due to non supply and obstruction in business, the opposite party No. 2 cancelled the agreement in the Month of January, 2011 and demanded the security money back. The petitioner refunded Rs. 2,51,000/- in the bank account of Firm Tekari Wala Farma and Rs. 2,50,000/- in the bank account of Agrawal Medical Store through RTGS to the opposite party No. 2. On demand of rest of Rs. 45 lac by the opposite party No. 2, the petitioner promised him to give the same. The petitioner refunded Rs. 2,51,000/- in the bank account of Firm Tekari Wala Farma and Rs. 2,50,000/- in the bank account of Agrawal Medical Store through RTGS to the opposite party No. 2. On demand of rest of Rs. 45 lac by the opposite party No. 2, the petitioner promised him to give the same. After lapse of some time, when the security money has not been refunded by the petitioner, the opposite party No. 2 sent demand notice dated 24.7.2012 but after expiry of the period of demand notice, the remaining amount has not been paid by the petitioner. Thereafter, the opposite party No. 2 filed a criminal complaint against the petitioner. The learned Magistrate after recording the statements under Sections 200 and 202, Cr.P.C. summoned the petitioner to face trial vide impugned order dated 22.2.2013. 3. It has been submitted by learned counsel for the petitioner that this is a pure commercial transaction in connection with trade. The security amount has actually been deposited with the Company but due to orders of the Apex Court for closing the business of Gutka, the Company could not refund the security amount deposited by opposite party No. 2 4. It has been submitted by learned counsel for the petitioner that the amended provision of Section 202, Cr.P.C. has not been adhered to as in this case the accused belongs to a place, which is not within the territorial jurisdiction of the Court which issued the process under Section 204, Cr.P.C. 5. The proceedings have also been challenged on the ground that it is pure and simple business transaction and purely a dispute of civil nature having no elements of criminal offence. 6. Learned counsel for the opposite party No. 2 while replying the argument of learned counsel for the petitioner submitted that if a civil wrong also constitute a criminal offence, the proceedings cannot be quashed. In support of his contention, he relied upon the judgment of the Apex Court in the case of Indian Oil Corporation v. NEPC India Limited and others; (2006) 6 SCC 736 . In support of his contention, he relied upon the judgment of the Apex Court in the case of Indian Oil Corporation v. NEPC India Limited and others; (2006) 6 SCC 736 . Learned counsel further relied upon the judgment of Delhi High Court in the case of Abhishek Agrawalla v. Boortmalt NV and another, decided on 14.2.2011 in Criminal Revision Petition No. 8 of 2010 submitted that where the offence sought to be proved from the document, the amended provision of Section 202 cannot be attracted. This provision is attracted only in the cases where the entire evidence to prove the case is oral in nature. 7. Heard learned counsel for the petitioner, learned A.G.A. for the State and learned counsel for the opposite party No. 2 and perused the record. In this case, the parties entered into an agreement for selling Goa Gutka and Pan Masala in State of Uttar Pradesh on 30.7.2010. The agreement was continued for about a year as per assertion made in the complaint. A perusal of the statement of complainant recorded under Section 200, Cr.P.C. reveals that the opposite party No. 2 remained silent in his statement about the allegations made in paragraph 7 of the complaint which contains that the petitioner has misappropriated the amount of Rs. 45 lacs after obtaining the same by committing fraud and his intention was not fair from very beginning. From the perusal of the record, it reveals that this is a case of cancellation/revocation of agreement by opposite party No. 2 and non payment of amount due. Unless it is prima facie established that by deceitful means, the amount has been obtained and has been actually misappropriated by that petitioner, mere assertion made in complaint for misappropriation of the security amount and non payment of the same do not construe necessary ingredients of offence under Section 406 IPC or under Section 420 IPC. Unless it is prima facie established that by deceitful means, the amount has been obtained and has been actually misappropriated by that petitioner, mere assertion made in complaint for misappropriation of the security amount and non payment of the same do not construe necessary ingredients of offence under Section 406 IPC or under Section 420 IPC. Therefore, it is a pure and simple civil dispute arising out of a business transaction having no element of criminal offence in view of the law propounded by the Apex Court in the Case of Indian Oil Corporation’s case (Supra), wherein the Apex Court observed as under: “A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.” It was further observed “A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law,may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a 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 proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” 8. It is not in dispute that cause for filing this complaint accrued to the opposite party No. 2 after cancellation of agreement. The agreement or its copy has been brought on record of either at lower Court (as is evident from Annexure CA-1, the list of documents filed before the trial Court) or before this Court. It is not in dispute that cause for filing this complaint accrued to the opposite party No. 2 after cancellation of agreement. The agreement or its copy has been brought on record of either at lower Court (as is evident from Annexure CA-1, the list of documents filed before the trial Court) or before this Court. In rejoinder-affidavit the petitioner stated that the amount of alleged security has been deposited with Meenakshi Food Products Pvt. Ltd. The owner of the company of Goa Gutka and Pan Masala must be the party to the agreement. No demand has ever been made with the company/manufacturer. 9. In view of above, I am of the view that mere reproduction of legal terminology and ingredient of an offence without being substantiated from any documentary or oral evidence in this commercial transaction relating to trade arising out of cancellation/revocation of an agreement of agency would not be sufficient. In such situation the petitioner may proceed for accounting. As such it is purely a civil dispute having no element of criminality on the part of petitioner. Moreover the allegations made in the complaint even if they are taken to be true on its face value, do not constitute any offence. The present case is covered by category No. (1) of Bhajan Lal’s case (Supra) and in view of latest law laid down by the Apex Court in Varinder Singh v. State of Punjab and another, (2014) 3 SCC 151 , this Court cannot refuse to grant the relief to the petitioner. Therefore, this petition deserves to be allowed. 10. So far as the question relating to non compliance of amended provisions of Section 202, Cr.P.C are concerned, that point need not be required to be taken into consideration in view of the discussions made herein above. Accordingly, the petition is allowed. The entire proceedings of Criminal Case No. 4230 of 2012 (Firm Shri Shyam Associates v. Upendra Kumar Sharma), under Sections 406, 419, 420 IPC, Police Station Kotwali Nagar, District Bahraich initiated in pursuance of impugned summoning order and pending in the Court of learned Chief Judicial Magistrate, Behraich are quashed. ——————