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2022 DIGILAW 154 (TS)

Harish Kesharia v. State of Telangana

2022-03-08

K.LAKSHMAN

body2022
ORDER : 1-a. The Crl.P.No.6895 of 2020 is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’) to quash the proceedings in Cr.No.85 of 2018 pending on the file of the Station House Officer, RGI Airport Police Station, Shamshabad. The offences alleged against the petitioners are under Sections 406 and 420 of IPC. 1-b. The Crl.P.No.6896 of 2020 is filed to quash the proceedings in C.C.No.14503 of 2019 pending on the file of the XII Additional Chief Metropolitan Magistrate, Hyderabad. The offence alleged against the petitioners are under Section 420 read with 34 of IPC. 1-c. The Crl.P.No.6896 of 2020 is filed to quash the proceedings in Cr.No.174 of 2019 pending on the file of the Station House Officer, RGI Airport Police Station, Shamshabad. The petitioners herein are accused in the said case. The offences alleged against the petitioners are under Sections 468, 478 and 506 of IPC. 2. Heard Sri Prajot H.Jaggi, learned counsel representing Ms. Anandita S.Chander, learned counsel for the petitioners, learned Public Prosecutor representing State and Sri K.S.Sunil, learned counsel, representing M/s Chandrasen Law Offices, for the 2nd respondent/defacto-complainant. Perused the record. 3. Perusal of the complaints in Cr.No.2018 and 174 of 2019, charge sheet in C.C.No.14503 of 2019, the Joint Memorandum of Understanding (MOU), dated 12.01.2020, Consent Terms dated 18.02.2021, would reveal that there are disputes between the petitioners and the 2nd respondent with regard to supply of RBD Palmolein Edible Oil. M/s Sarda Agro Oils Private Limited represented by its Managing Director, Mr. Jagadish Kumar Sarda, agreed to sell 1000 Metric Tonnes of RBD Palmolein Edible Oil, in two lots. 500 Metric Tonnes of oil in four transactions 125 Metric Tonnes each to M/s. K.Trambaklal, vide High seas sale agreements dated 13.12.2013, 22.12.2013. With regard to sale of 375 Metric Tonnes of oil in three lots of 125 Metric Tonnes each, the transaction was complete. With regard to last 125 Metric Tonnes of oil transactions, 23 Metric Tonnes of oil is complete and with regard to 102 Metric Tonnes of oil, the transaction is in dispute. M/s. K.Trambaklal, through his Power of Attorney Holder Mr. Ashok Kesharia has lodged a complaint with Police, Nhava Sheva Police Station, Mumbai, who registered a case in Cr.No.2 of 2014 for the offences under Sections 420, 461 and 475 read with 34 of IPC. M/s. K.Trambaklal, through his Power of Attorney Holder Mr. Ashok Kesharia has lodged a complaint with Police, Nhava Sheva Police Station, Mumbai, who registered a case in Cr.No.2 of 2014 for the offences under Sections 420, 461 and 475 read with 34 of IPC. After completion of investigation, the Investigating Officer has filed charge sheet and the same was taken on file as RCC No.49 of 2017. 4. M/s K.Trambaklal, has also filed a suit vide RCS No.71 of 2016 for injunction before the Civil Court of Junior Division, at Uran, Raigad, Maharashtra, against M/s. Sarda Agro Oils Private Limited. 5. With regard to sale of 500 Metric Tonnes of RBD Palmolein Edible Oil in two transactions of 250 Metric Tonnes each under two High Seas sale agreements dated 13.12.2013 and 22.12.2013. Both the transactions are in dispute. The 2nd respondent though filed a complaint with the Police, Bahadurpura Police Station, who in turn, registered the same as a case in Cr.No.163 of 2014 against the petitioners herein and the same was transferred to the Central Crime Station Hyderabad for the offences under Sections 420, 468, 471 and 506 read with 34 of IPC and re-numbered as Cr.No.197 of 2014. After completion of investigation, the Investigating Officer has filed a charge sheet vide C.C.No.14503 of 2019 against the petitioners for the offences under Section 420 read with 34 IPC. 6. The 2nd respondent had also lodged a complaint with the Police, Bahadurpura Police Station, who registered a case in Cr.No.32 of 2017 for the offences under Sections 420, 468 and 506 of IPC and the same was quashed by this Court vide order dated 30.03.2017 in W.P.No.10521 of 2017 and batch. The 2nd respondent had also lodged another complaint with police, RGI Airport Police Station, Shamshabad, who registered a case in Cr.No.85 of 2018 against the petitioners in Crl.P.No.6895 of 2020 for the offences under Sections 406 and 420 of IPC. The 2nd respondent had also lodged a complaint with the Police, RGI Airport Police Station, Shamshabad, who registered a case in Cr.No.174 of 2019 in Crl.P.No.6897 of 2020 for the offences under Sections 420, 468, 471 and 506 of IPC. 7. The 2nd respondent had also lodged a complaint with the Police, RGI Airport Police Station, Shamshabad, who registered a case in Cr.No.174 of 2019 in Crl.P.No.6897 of 2020 for the offences under Sections 420, 468, 471 and 506 of IPC. 7. The 2nd respondent has also lodged a complaint with the Police, Nhava Sheva Police Station, Mumbai, who in turn, registered a case in M3 of 2019 for the offences under Sections 405, 406,415, 465, 467, 471 and 420 IPC. The allegations in the said crime are almost identical to allegations in Cr.No.197 of 2014. 8. All the above said complaints and suit are out of the same transaction and the same are with regard to sale of RBD Palmolein Edible Oil. There is change in the name of the accused and amount claimed by the 2nd respondent in the said complaints. 9. It is relevant to note that during pendency of the above said crimes, the Calendar Case and suit, M/s Sarda Agro Oils Private Limited represented by Mr. Jagadish Kumar Sarda, Mr. Jagadish Kumar Sarda as the First part and K.Trambaklal and Mr.Harish Keshavlal Kesharia as Second part, have entered into MOU dated 12.01.2020 on specific terms and conditions mentioned therein. 10. Mr.Jagadish Kumar Sarda and M/s K.Trambaklal have also entered into Consent Terms dated 18.02.2021 on the specific terms mentioned therein. There is specific mention about the settlement of disputes/claims between the parties and withdrawal of all the cases filed against each other and the parties of the Second part have no objection for applying to the custodian of the oil tanker M/s Jethabahai Gopalji represented by its proprietor Mr. Darshak Sachde to complete all formalities and release approximately 500 Metric Tonnes of oil and also to further complete all formalities to transfer the custody in favour of the parties of the First Part etc. 11. The details of the cases, accused and transactions etc, are specifically mentioned in the said MOU and the obligations to be complied with by the parties are also specifically mentioned in the MOU and consent terms. 11. The details of the cases, accused and transactions etc, are specifically mentioned in the said MOU and the obligations to be complied with by the parties are also specifically mentioned in the MOU and consent terms. It is relevant to note that pursuant to the said MOU and consent terms, the petitioners in all the above said three petitions and nd respondent have filed appropriate applications under Section 320 of Cr.P.C. along with affidavit and joint memo of terms seeking permission of the Court to compound the offences and to quash the proceedings in the above said cases. 12. It is also relevant to note that pursuant to the said MOU and Consent Terms on filing appropriate applications, the High Court of Judicature at Bombay had quashed the proceedings in RCC No.49 of 2017 (arising out of FIR No.M2 of 2014). The suit vide RCS No.71 of 2016 filed by M/s. K.Trambaklal was withdrawn. Pursuant to the MOU dated 12.01.2020 and in view of the Consent Terms given by the 2nd respondent, the Bombay High Court has also quashed the the proceedings in Cr.No.M/3 of 2019 pending on the file of the Police, Nhava Sheva Police Station. 13. As stated above, the petitioners and the 2nd respondent in the above said three criminal petitions have filed affidavits and joint memo of terms and appropriate applications under Section 320 of Cr.P.C. seeking permission of this Court to quash the above said proceedings by recording compromise. The 2nd respondent had also signed joint memo of compromise and also filed an affidavit. Thereafter, the 2nd respondent went back on the ground that the petitioners herein are not issuing no objection for release of the Palmolein Edible Oil for applying to the custodian of the oil tanker M/s Jethabahai Gopalji represented by its proprietor Mr. Darshak Sachde to complete all formalities and release the oil and also to further complete all formalities to transfer the custody in favour of the parties of the parties of the First Part etc. 14. In view of the same, this Court heard learned counsel for the petitioners, learned counsel appearing for the 2nd respondent and learned Public Prosecutor on merits. 15. Sri Prajot H.Jaggi, learned counsel representing Ms. 14. In view of the same, this Court heard learned counsel for the petitioners, learned counsel appearing for the 2nd respondent and learned Public Prosecutor on merits. 15. Sri Prajot H.Jaggi, learned counsel representing Ms. Anandita S Chander, learned counsel for the petitioners would submit that the transactions between the petitioners and the 2nd respondent are commercial transactions and the same are with regard to sale of RBD Palmolein Edible Oil. There is no element of cheating and inducement. The contents of the complaints in Cr.No.85 of 2018, 174 of 2019 and charge sheet in C.C.No.14503 of 2019 lacks ingredients of the offences alleged against the petitioners herein. Despite entering into MOU, dated 12.01.2020 and Consent Terms dated 18.02.2021 and the terms of conditions specifically mentioned therein, the 2nd respondent is not cooperating in quashing the above said two crimes and the proceedings in C.C.No.14503 of 2019. The transactions between the petitioners and the 2nd respondent are commercial and civil in nature. The said transactions are relating to the year 2013 and the 2nd respondent has lodged the above said complaints after lapse of 5 years. Thus, there is delay of 5 years in lodging complaints. Since the transactions are civil and commercial in nature, the 2nd respondent, instead of filing suit for recovery of money or initiating civil proceedings, lodged the above said complaints to recover the money which is barred by limitation. There is no breach of trust committed by the petitioners herein and the contents of complaints and charge sheet lacks the ingredients of Section 406 of IPC. With the said contentions, learned counsel for the petitioners sought to quash the above said crimes and also the proceedings in C.C.No.14503 of 2019. 16. Whereas, learned counsel appearing for the 2nd respondent would submit that there are specific allegations against the petitioners/accused in the above said two complaints and charge sheet in C.C.No.14503 of 2019. There are several triable issues to be investigated into by the Investigating Officer and to be decided by the trial Court after conducting trial. The petitioners have to cooperate with the Investigating Officer in the above said two crimes and trial Court in concluding investigation and trial in the above said C.C.No.14503 of 2019. There are several triable issues to be investigated into by the Investigating Officer and to be decided by the trial Court after conducting trial. The petitioners have to cooperate with the Investigating Officer in the above said two crimes and trial Court in concluding investigation and trial in the above said C.C.No.14503 of 2019. Therefore, the petitioners herein, instead of facing trial and cooperating with the Investigating Officer, filed the present petitions to quash the proceedings in the above two crimes and charge sheet. The petitioners are not cooperating with the 2nd respondent/defacto-complainant in getting oil released from the custodian in terms of the MOU and Consent Terms though the 2nd respondent is interested to record compromise in terms of the joint memo. The petitioners failed to discharge their part of obligation in terms of the said MOU and Consent Terms. Therefore, they cannot blame the 2nd respondent for their own fault. With the said contentions he sought to dismiss the present petitions. 17. Learned Public Prosecutor, on instructions, would submit that the disputes are civil and commercial in nature and there are several factual aspects to be investigated into by the Investigating Officer in the above said two crimes and the trial Court has to consider the contents of the charge sheet in C.C.No.14503 of 2019 and therefore, the same may not be quashed by invoking the power of this Court under Section 482 of Cr.P.C. With the said contentions, he sought to dismiss the present criminal petitions. 18. As stated above, in the above said two complaints in Cr.No.85 of 2018 and 174 of 2019 and charge sheet in C.C.No.14503 of 2019, the transactions between the petitioners/accused and the 2nd respondent/defacto-complainant are with regard to sale of RBD Palmolein Edible Oil. There are disputes with regard to one transaction of 125 Metric Tonnes of oil in the first lot and 250 Metric Tonnes of oil each in two transactions in the second lot. Therefore, two complaints were registered in Nhava Sheva Police Station and also a suit vide RCS No.71 of 2016 was filed. The said two complaints were quashed by the Bombay High Court in view of the compromise entered between the parties and M/s Trambaklal has also withdrawn said suit vide RCS No.71 of 2016 in view of the Consent Terms and the MOU, dated 12.01.2020. 19. The said two complaints were quashed by the Bombay High Court in view of the compromise entered between the parties and M/s Trambaklal has also withdrawn said suit vide RCS No.71 of 2016 in view of the Consent Terms and the MOU, dated 12.01.2020. 19. In MOU dated 12.01.2020 at clause No.2, there is specific mention about the withdrawal of complaints against each other and also the claims. It is specifically mentioned that both the parties to the said agreements that parties of the Second part shall issue No Objection Certificate for the release of approximate 500 Metric Tonnes to IMC Limited situated in the premises of the JNPT Port and to police concerned for withdrawal of the oil and the parties of the Second part shall also issue No Objection Certificate to the Nhava Sheva Police to release the oil. At clause No.3 of the said MOU, the parties have specifically agreed that the parties of the Second part has no objection for the party of First part applying to the custodian of the Oil Tanker M/s Kethabahai Gopal ji represented by its proprietor Mr. Darshak Sachde to complete all formalities and release approximately 500 Metric Tonnes of oil and also to further complete all formalities to transfer the custody in favour of the parties of the First party (in case the custodian wants any instruction, it shall be provided by the parties of the Second party which shall be at the cost and consideration of the parties of the First party). All costs and charges to be paid for release and removal of the subject oil, being subject matter therein, shall be solely borne by the parties of the First part. The details of the complaints, crimes, accused and offences are specifically mentioned. 20. It is also agreed that the parties have to withdraw all claims against each other. The consent terms dated 18.02.2021 are also on the same lines as that of the MOU dated 12.01.2020. The details of the complaints, crimes, accused and offences are specifically mentioned. 20. It is also agreed that the parties have to withdraw all claims against each other. The consent terms dated 18.02.2021 are also on the same lines as that of the MOU dated 12.01.2020. Pursuant to the said MOU and Consent Terms, Mr.Ashok Keshavlal Kesharia, the GPA holder of M/s K.Trambaklal, the accused in both the above said crimes and C.C.No.14503 of 2019 had filed affidavit in Crl.P.No. 3331 of 2021 before the Bombay High Court stating that he has no objection for the proceedings in RCC No.49 of 2017 arising out of Cr.No.M2 of 2014 registered with Nhava Sheva Police Station, Bombay are quashed and 500 Metric Tonnes of goods seized are released in favour of Mr.Jagadish Kumar Sarda. 21. Learned counsel for the petitioners, referring to the Consent Terms, No Objection Certificate issued in favour of M/s. Sarda Agro Oils Limited, by Mr. Ashok Kesavlal Kesharia, GPA holder of Mr. K.Trambaklal, would submit that he has submitted the said No Objection Certificate to the Police, Nhava Sheva Police Station stating that he has no objection and he is giving consent for release of the subject goods in favour of M/s Sarda Agro Oil Limited subject to complying with the terms mentioned in Clause No.4 of the MOU dated 12.01.2020. Thus, according to the learned counsel, the petitioners have complied with the obligations cast upon them vide MOU, dated 12.01.2020 and Consent Terms dated 18.02.2021. 22. Referring to the order passed by Civil Judge, Junior Division, Uran, dated 23.02.2021, learned counsel for the petitioners would submit that M/s Trambaklal represented by his GPA holder Mr.Ashok Keshavlal Kesharia had withdrawn the suit vide RCS No.71 of 2016 in terms of the said MOU and Consent Terms. 23. Referring to the orders dated 14.07.2021 in Crl.W.P.No.251 of 2019 and dated 10.03.2021 in W.P.No.890 of 2021, learned counsel for the petitioners would submit that Bombay High Court, quashed the above said two crimes pending on the file of Nhava Sheva Police Station in terms of the above said MOU and Consent Terms and also on reporting no objection by M/s Trambaklal represented by its GPA holder Ashok Mr.Ashok Keshavlal Kesharia. Therefore, there is no violation of the terms in the MOU and Consent Terms, by the petitioners/accused in the above said two crimes and C.C.No.14503 of 2019. Therefore, there is no violation of the terms in the MOU and Consent Terms, by the petitioners/accused in the above said two crimes and C.C.No.14503 of 2019. It is the 2nd respondent who is going back, despite filing affidavit and joint memo of terms seeking to record compromise and quash the above said crimes and proceedings in the Calendar Case. 24. As stated above in all the above said three criminal petitions, the 2nd respondent has filed an affidavit referring to the above said MOU dated 12.01.2020 and Consent Terms dated 18.02.2021, specifically mentioning that he has no objection for the proceedings arising out of the above said two crimes and C.C.No.14503 of 2019 are to be quashed. Similar terms are mentioned in the joint memo of compromise filed by the petitioners and the 2nd respondent/defacto-complainant. In the joint memo of compromise also, there is specific mention about the compounding of the offences and permission sought and also to quash the proceedings in the above said two crimes and the proceedings in C.C.No.14503 of 2019. 25. The above said discussion and facts would reveal that the transactions between the parties are commercial and civil in nature. The contentions of the complaint in the above stated crimes and charge sheet in C.C.No.14503 of 2019 lacks ingredients of the offences alleged against the petitioners/accused. There is no inducement by the accused and there is no criminal beach of trust. If the parties are aggrieved, they have to approach the concerned civil Court but instead of doing so, the 2nd respondent/defacto-complainant has lodged the above said complaints against the petitioners/accused. 26. Realizing the said facts that the disputes/transactions are commercial in nature, the parties have entered into the compromise and the same were reduced into writing by way of MOU, dated 12.01.2020 and consent terms dated 18.02.2021 on the specific terms and conditions mentioned therein. Even then, the 2nd respondent is now going back on the ground that the petitioners are not giving no objection for release of the said stock. It is relevant to mention that there is specific mention about no objection and M/s. K.Trambaklal, represented by his GPA holder Mr.Ashok Keshavlal Kesharia, has already issued no objection certificate, dated 12.01.2021 to the Inspector of Police, Nhava Sheva Police Station. It is relevant to mention that there is specific mention about no objection and M/s. K.Trambaklal, represented by his GPA holder Mr.Ashok Keshavlal Kesharia, has already issued no objection certificate, dated 12.01.2021 to the Inspector of Police, Nhava Sheva Police Station. It is also relevant to note that the crimes registered at the instance of the said M/s.Trambaklal represented by his GPA holder have been quashed by the Bombay High Court and on the consent given by the said GPA holder and he has also withdrawn the suit No.71 of 2016. Thus, he has completed his part of obligations. The 2nd respondent has to complete his part of obligations by withdrawing the present crimes and proceedings in C.C.No.14503 of 2019. However, as stated above, the transactions are civil and commercial in nature. The contents of the complaints in Cr.No.85 of 2018, Cr.No.174 of 2019 and charge sheet in C.C.No.14503 of 2019 lacks ingredients of the offences alleged against the petitioners herein. 27. Viewed from any angle, the proceedings in the above said two crimes and the Calendar Case are liable to be quashed. 28. In the result, these three Criminal Petitions are allowed quashing the proceedings in Cr.No.85 of 2018 and Cr.No.174 of 2019 pending on the file of the Station House Officer, RGI Airport Police Station, Shamshabad and also the proceedings in C.C.No.14503 of 2019 pending on the file of the XII Additional Chief Metropolitan Magistrate, Hyderabad against the respective petitioners herein. Consequently, miscellaneous petitions, pending if any, in these criminal petitions shall stand closed.