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Himachal Pradesh High Court · body

2015 DIGILAW 440 (HP)

Uma Akash Agro Pvt. Ltd. v. State of H. P.

2015-05-02

SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, J. The petitioners herein through this petition filed under Section 482 Cr. P.C. seek the indulgence of this Court for quashing of F.I.R. No. 94 of 2013 registered at Police Station Parwanoo, District Solan under Sections 406 and 420 IPC and also seek quashing of orders of 13.11.2013 rendered by the learned Judicial Magistrate 1st Class, Kasauli, District Solan besides orders of 16.12.2013 rendered by the learned Sessions Judge, Solan. 2. The petitioner No.1 is a private limited company and owns a cold storage for storing farm/horticultural produce. Respondent No. 2 is the owner of an apple orchard. The factum of respondent No.2 having sold apple boxes to respondent No.3 is perse evident from a perusal of the averments contained in paragraph 3 of Cr. MP No. 708 of 2014 in Cr. MMO No. 4127 of 2013. Besides, the factum of respondent No. 2 having sold his apple boxes carrying a value of Rs.1.32 crore to Rakesh @ Rajender Prasad @ Rajan Sharma is forthcoming from a perusal of a detailed report submitted by the Investigating Officer, SHO Police Station, Parwanoo. Therefore, the factum of passing of title in the apple boxes numbering 11,117 by respondent No.2 in favour of respondent No. 3 stands clinched. However, it is also evident from an incisive reading of the comprehensive report submitted by the SHO, Police Station, Parwanoo, that the buyer of goods inasmuch, as, respondent No.3 had paid to the seller who is respondent No. 2 only a sum of Rs. 20 lacs and the remaining price of apple boxes aforesaid remains unpaid to respondent No. 2 by respondent No. 3. On respondent No. 3 purchasing the goods from respondent No.2 he came to as portrayed by Annexure P-8 deposit them in the cold storage owned by the petitioner No.1. Since the entire sale consideration for 11,117 apple boxes purchased by respondent No.3 from respondent No.2 stood not paid and theirs having come to be stored in the cold storage owned by petitioner No.1, the respondent No.2 took to institute a complaint against the petitioners herein averring therein that the latter in connivance with the respondent No.3 had deprived him of the entire sale consideration qua apple boxes numbering 11,117 owned by respondent No.2, as such, they had committed offences constituted under Section 420 and 406 IPC. 3. 3. The uncontroverted factum as is evident from the aforesaid discussion is of title qua 11,117 of apple boxes having passed in favour of respondent No. 3 from respondent No.2, its hitherto owner. Consequently, the aforesaid factum cannot obviously constitute the factum of the goods purchased by respondent No.3 from respondent No.2 to be hence entrusted to respondent No.2 nor also when title in the goods was transferred or alienated by respondent No.2 in favour of respondent No.3, the recipient of the goods, who is the petitioner No.1, besides petitioners No. 2 and 3 its employees, cannot also be in any manner concluded to have connived or colluded with respondent No.3, in the latter having purportedly committed the offence of criminal breach of trust. The respondent No.3 who is the purchaser of the goods from respondent No.2, constituted by the act of his uncontrovertedly receiving goods from respondent No.3, had acquired title qua them from respondent No.2. It is obvious that when respondent No.3 became the owner of the contentious goods, he cannot be construed to have been entrusted their custody by respondent No.2. Besides, the mere fact that the entire sale consideration qua contentious goods had not come to be passed by respondent No.3 in favour of respondent No.2 even the said fact cannot imbue the fact of their possession gained by respondent No.3 on payment of part of sale consideration to be an entrustment thereof to him. In aftermath, for reiteration the owner of goods cannot be construed to have when they stood purchased by him from its owner received them by way of entrustment from the seller. Consequently, when the respondent No.2 lost control or title over the goods, he cannot claim to have, when he possesses no title qua them as owner, that hence he had entrusted them to the buyer. Obviously, when there is no element of entrustment of goods by respondent No.2 to respondent No.3 especially in the event of respondent No.3 having purchased or acquired title over 11,117 number of apple boxes from its seller, who is respondent No.2, then prima facie no offence of criminal breach of trust is constituted against respondent No.3. Obviously, when there is no element of entrustment of goods by respondent No.2 to respondent No.3 especially in the event of respondent No.3 having purchased or acquired title over 11,117 number of apple boxes from its seller, who is respondent No.2, then prima facie no offence of criminal breach of trust is constituted against respondent No.3. The petitioners, who are the recipient of goods from respondent No.2 cannot, also be by the act of theirs receiving goods from a lawful buyer, by the mere fact of theirs receiving them from the latter, be construed to have also in continuity committed the offence of criminal breach of trust enshrined in Section 406 of the Indian Penal Code. An incisive reading of the detailed report furnished by the SHO, as also of the record of the case unfolds that respondent No.2 hitherto owner of 11,117 apple of boxes was aggrieved by the act of respondent No.3, constituted by the latter not paying the entire sale consideration to him qua 11,117 apple boxes sold by him to respondent No.3. The complainant alleges that the petitioners and the respondent No.3 colluded and connived with each other. The said fact is attempted or concerted to be ingrained in the act of the petitioners, who when sought to be conversed over landline and mobile phone by respondent No.2 having transferred calls to the mobile number of respondent No.3. The aforesaid fact does not perse constitute nor convey the fact that there was collusion or connivance interse the petitioners and respondent No.3 especially in the act of respondent No.3 having not paid the entire sale consideration to respondent No.2 qua the 11,117 of apple boxes purchased by him from respondent No.2. The collusion or connivance interse the petitioners and respondent No.3 was cullable only from the evident fact comprised in payments qua the goods purchased by respondent No.3 from respondent No.2 having emanated from the petitioners. The collusion or connivance interse the petitioners and respondent No.3 was cullable only from the evident fact comprised in payments qua the goods purchased by respondent No.3 from respondent No.2 having emanated from the petitioners. However, no such forthright evidence exists on record portraying that the petitioner No.1 was a buyer or a hidden buyer and that the respondent No. 3 was merely a benamidar and that hence the liability for defraying the entire sale consideration to respondent No.2 was fastenable, upon the petitioners and theirs having omitted to part with the entire sale consideration for goods purchased by respondent No. 3 from respondent No.2, they are rendered amenable for penal liability envisaged in Section 420 of the IPC. However, when the above fact is not forthcoming, on a deep and incisive scanning of the file, consequently no inference other than the one that the respondent No.3 was the actual and not an obscure buyer of the petitioner company hence he alone was liable to defray to the respondent No. 2, the entire sale consideration for goods purchased by him from the latter. The aforesaid discussion constrains this Court to conclude that the complaint with the allegations against the petitioners is misconceived, it constitutes abuse of process of law and tantamounts to harassing the petitioners and as such it deserves to be quashed and set-aside. Moreso, when the liability, if any of the respondent No.3 to the respondent No.2 arising from his purported act of not defraying to the latter the entire sale consideration for 11,117 apple boxes, is a civil liability. Besides, when it stands mitigated by the orders rendered by the Judicial Magistrate 1st Class, Kasauli, District Solan, wherein the said Court ordered for the release of apple boxes in favour of respondent No.2 as also of appropriation by him of their sales turn over, it looses tinge if any of criminality. Accordingly, the petition is allowed to the extent that the F.I.R. is quashed and set-aside. Accordingly, the petition is allowed to the extent that the F.I.R. is quashed and set-aside. However, since the orders rendered by the Judicial Magistrate have attained finality and are rendered qua perishable goods and appear to have been rendered to recompense the respondent No.2 the owner of goods for his having come to be not defrayed by the respondent No.3 the entire sale consideration, as such, when respondent No.3, the person who may have been aggrieved by the said orders, may then proceed to impeach the said orders before the competent Court. Consequently, the assailing of the orders of the Judicial Magistrate 1st Class, Kasauli, comprising in Annexure P-5 at the instance of the petitioner No.1 is wholly unwarranted, who is merely a bailee of goods who rather may be entitled to claim rent from respondent No.2 or respondent No.3 for the period the apple boxes stood stored in its premises and which stands tendered before the Sessions Court, Solan and is comprised in FDR in the sum of Rs.21 lacs, as is evident from the reading of the impugned orders rendered by the learned Sessions Judge, Solan comprised in Annexure P-7. Consequently, it is not deemed fit to interfere with the orders of the learned Sessions Judge. It rather is deemed fit, just and appropriate that the petitioners herein approach the learned Sessions Judge, Solan for laying or staking a claim for the release of rent amount for storing apple boxes in its premises comprised in the FDR amounting to Rs.21 lacs, which application if and when stands instituted shall be decided in accordance with law.