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2019 DIGILAW 737 (CAL)

Rajendra Prasad Sharma v. Hartin Harris Ltd.

2019-07-22

SUVRA GHOSH

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JUDGMENT : 1. Order dated 01-07-2016 passed by the learned Additional Chief Metropolitan Magistrate, Calcutta in connection with Case No. C-267 of 1998 under Section 407/411/120B of the Penal Code is assailed. 2. The opposite party lodged the complaint against the petitioner and three others - Pawan Kumar Goel, Arun Kumar Goel, and Mahabir Prasad Sharma under Sections 407/411/120B of the Penal Code wherein he alleged that his company entrusted medicines to the firm of accused no. 1 and 2 M/S. Goel Road lines Corporation for transport of the said medicines to the petitioner/accused no. 4 against consignment notes. Accused nos. 1 and 2 delivered the goods to accused nos. 3 and 4 without receiving a copy of consignment note from the latter and thereby disposed all the medicines in favour of the accused no. 3 and 4 dishonestly in breach of trust reposed upon them by the opposite party. 3. The case was filed for the present against accused nos. 1 and 2 and filed forever against accused no. 3 Mahabir Prasad Sharma who expired in the mean time. The petitioner is the only accused who is contesting the case and is being proceeded with for offence under Section 411 of the Penal Code. 4. The petitioner prayed for his discharge before the learned trial court on the ground that no offence under Section 411 of the Penal Code was made out against him. By the impugned order, the learned trial court rejected the said application. 5. It is submitted by learned advocate for the petitioner that the petitioner acknowledged the receipt of the goods sent by the opposite party through the transporter (accused nos. 1 and 2) and sent a letter to the opposite party seeking some time to make payment. No specific allegation has been made out against the petitioner in the complaint and the evidence on record also does not suggest the involvement of the petitioner in the alleged offence in any manner whatsoever. The opposite party also filed a Money Suit in this regard against the petitioner for recovery of the amount due from him. According to the petitioner, a civil dispute between the parties relating to a money claim has been converted a criminal proceeding only with a view to pressurize the petitioner. The opposite party also filed a Money Suit in this regard against the petitioner for recovery of the amount due from him. According to the petitioner, a civil dispute between the parties relating to a money claim has been converted a criminal proceeding only with a view to pressurize the petitioner. Reliance has been placed by the petitioner upon the authority in Chandran Ratnaswami v/s. K.C. Palanisamy and others reported in (2014) 1 Supreme Court Cases (Cri) 447 wherein the Hon'ble Supreme Court has deprecated the use of criminal prosecution as an instrument to create pressure and harass where the civil law remedy is available. 6. The opposite party vehemently opposes the prayer of the petitioner and submits that medicines were given to the transporter for delivery in favour of the petitioner and the transporter misappropriated them on the way. The opposite party is not aware whether there has been any conspiracy or unholy nexus between the transporter and the petitioner. There is sufficient ingredient under Section 411 of the Penal Code against the petitioner and the trial court has the liberty to alter the charge levelled against the petitioner if it is found necessary after recording evidence. Learned advocate has relied upon the decision of the Hon'ble Supreme Court in Sangeetaben Mahendrabhai Patel v/s. State of Gujrat and another reported in AIR 2012 SC 2844 . 7. Medicines were sought to be delivered to the petitioner's company by the opposite party through the transporter, accused nos. 1 and 2. In his evidence before the learned trial court, the representative of the opposite party stated that by letter dated 21-02-1998, the petitioner acknowledged the receipt of the goods and agreed to make payments for the same by 31st March, 1998. The evidence also states that such payment not being made within the stipulated date, another letter demanding payment was sent by the opposite party to the petitioner on 02-04-1998. A Money Suit was also filed against the petitioner over the same issue. 8. Section 411 of the Penal Code is required to be set out: "Dishonestly receiving stolen property- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 9. Section 411 of the Penal Code is required to be set out: "Dishonestly receiving stolen property- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 9. In the present case, the medicines were admittedly delivered to the petitioner by the transporter and receipt of the same was acknowledged by the petitioner. The bone of contention between the parties is the non-payment of the price of the said goods by the petitioner. No stolen property is involved in the case and the question of dishonestly receiving or retaining such stolen property despite having knowledge of it being stolen property, does not arise. As such, the ingredients of offence under Section 411 of the Penal Code are not attracted. 10. In the judgment of the Hon'ble Supreme Court relied upon by the opposite party, the proposition of law is as follows:- "the law is well settled that in order to attract the provisions of Article 20 (2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr. P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different." 11. In the judgment of the Hon'ble Supreme Court relied upon by the petitioner, conversion of a purely civil dispute into a criminal prosecution only to harass and create pressure is deprecated and discouraged by the Hon'ble Court. 12. The claim of the opposite party is only a money claim and does not constitute an offence under Section 411 of the Penal Code. 13. As a consequence, the interest of justice shall be defeated if the petitioner is allowed to suffer the ordeal of a criminal trial for no offence committed by him, the ingredients under Section 411 of the Penal Code being absent in the complaint as well as in the evidence. 14. Accordingly, order dated 01-07-2016 passed by the learned Additional Chief Metropolitan Magistrate, Calcutta in connection with Case No. C-267 of 1998 is set aside. 15. The petitioner be discharged from the case. 16. 14. Accordingly, order dated 01-07-2016 passed by the learned Additional Chief Metropolitan Magistrate, Calcutta in connection with Case No. C-267 of 1998 is set aside. 15. The petitioner be discharged from the case. 16. However, the opposite party shall be at liberty to pursue his money claim against the petitioner in accordance with law. 17. CRR 2852 of 2016 is allowed. 18. Urgent certified website photocopies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.