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2023 DIGILAW 152 (GUJ)

Shailesh Anilbhai Radiya v. State Of Gujarat

2023-01-18

GITA GOPI

body2023
ORDER : 1. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’) for quashing and setting aside the First Information Report bearing IC. R. No.41 of 2013 registered with D.C.B. Police Station, Ahmedabad for the offences punishable under Sections 406, 409, 384, 504 and 114 of the Indian Penal Code as also the charge-sheet and the proceedings of Criminal Case No.185 of 2014 pending before the Court of the learned Additional Metropolitan Magistrate, Court No.11, Ahmedabad. 2. Learned Senior Counsel Mr. Yogesh S. Lakhani assisted by learned Advocates Mr. Kshitij M. Amin and Mr. Rahul Dholakia for the applicant has questioned the jurisdiction of the Cyber Crime Cell. While referring to the judgment of the Hon’ble Apex Court in the case of Y. Abraham Ajith and Others v. Inspector of Police, Chennai reported in 2004 (8) SCC 100 , it is submitted by learned Senior Counsel Mr. Yogesh S. Lakhani that the place of enquiry or trial will generally be within the local jurisdiction where the offence is committed. It is further contended that without any allegations of any cyber crime in the impugned First Information Report, the Cyber Crime Cell, Ahmedabad City has registered the First Information Report. It is submitted that the registration of the First Information Report should be in accordance with the territorial jurisdiction as no cause of action has arisen and that itself would be a preliminary ground for quashing of the complaint. 3. Adverting to the facts of the case, learned Senior Counsel Mr. Yogesh S. Lakhani submitted that the applicant is shown to be the Director of the company - M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai. The complaint has been made by Prabhuram Shivram Patel, who is the father of the head of M/s. Rainbow Exports, i.e. Bhavinkumar Prabhuram Patel. Referring to the complaint, it is submitted that M/s. Rainbow Exports is in the business of foreign exports and sends cargoes as per the instructions of the customers and for that purpose would approach a booking and forwarding Agent, who would work as per the instructions of the export company. Referring to the complaint, it is submitted that M/s. Rainbow Exports is in the business of foreign exports and sends cargoes as per the instructions of the customers and for that purpose would approach a booking and forwarding Agent, who would work as per the instructions of the export company. It is also submitted that as per the First Information Report, the complainant had approached the applicant who is stated to be the Director of M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai a forwarding company, based in Mumbai for exporting from India to worldwide destinations. The complainant has alleged of fraud by accused of charging higher expenses. It is also submitted that the facts suggest that on 29.02.2012, M/s. Rainbow Exports had exported hulled sesame seeds to Greece. The applicant’s company - M/s. MPRS Shipping & Logistics Pvt. Ltd. approached the shipping line to export the container at Greece and according to the complaint, the Bill of Lading No. HLCUMU1120204633 was to be given to the complainant. It is alleged that it was not handed over by the applicant to the complainant but the bill of lading came to be retained on the ground of non-payment of dues. 4. It is further submitted by learned Senior Counsel Mr. Yogesh S. Lakhani that the very complaint itself is not maintainable in the eye of the law since the dispute is totally civil in nature. M/s. Rainbow Exports was transacting with M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai for more than two years and there were continuous Ledger accounts of M/s. Rainbow Exports maintained by M/s. MPRS Shipping & Logistics Pvt. Ltd., Kandivali (East), Mumbai. The bill of lading issued on 01.03.2012 at Mumbai was in context of the Container of hulled sesame seeds. The freight was payable from Mumbai and the bill of lading shows that the freight was pre-paid. The port of loading was shown as Mundra while the port of discharge was shown as Piraeus, Greece. 5. Learned Senior Counsel Mr. The bill of lading issued on 01.03.2012 at Mumbai was in context of the Container of hulled sesame seeds. The freight was payable from Mumbai and the bill of lading shows that the freight was pre-paid. The port of loading was shown as Mundra while the port of discharge was shown as Piraeus, Greece. 5. Learned Senior Counsel Mr. Yogesh S. Lakhani also submitted that ledger accounts states the outstanding payables were from at the end of the complainant which was intentionally neglected to pay and the present applicant had the right to recover the outstanding dues which according to the applicant were demanded from the complainant and the total due payment amount was Rs.2,85,221/- and the said amount was demanded by way of legal notice dated 02.04.2012 issued to M/s. Rainbow Exports, having their office at Ahmedabad. It is submitted that the amount was due and payable and as per the running Ledger account, the complainant was required to pay the same. It is further submitted that the allegations against the applicant is of holding back the original copy of the bill of lading for the freight amount that has been paid by the applicant. 6. Learned Senior Counsel Mr. Yogesh S. Lakhani stated that a completely civil transaction has been given a criminal colour. The continuous notice correspondence also discloses the fact that there were periodical transactions between the complainant and the applicant’s company. Regular Civil Suit No.110 of 2015 has been filed in the Court of learned Senior Civil Judge, Ahmedabad (Rural) by M/s. Rainbow Exports against the present applicant as defendant No.1, M/s. MPRS Shipping & Logistics Pvt. Ltd. as defendant No.2 and M/s. Hapag-Lloyd India Pvt. Ltd. as defendant No.3. It is also submitted that the applicant had the right to retain all the documents and there was no illegality in retaining the bill of lading when there were outstanding dues payable to the applicant. 7. Countering the above submissions, learned Senior Counsel Mr. Jal Sol Unwala assisted by learned Advocate Ms. Tejal A. Vashi submitted that criminal act of the applicant is the withholding of the bill of lading and because of that act, the container got stuck and the goods could not be delivered at the destination. 7. Countering the above submissions, learned Senior Counsel Mr. Jal Sol Unwala assisted by learned Advocate Ms. Tejal A. Vashi submitted that criminal act of the applicant is the withholding of the bill of lading and because of that act, the container got stuck and the goods could not be delivered at the destination. It is submitted that the applicant was a forwarding agent and had to fulfill all the legal responsibilities under the instructions of the Principal; and on account of the illegal act of retaining the bill of lading, the export of 18383.100 Kgs. of Hulled Sesame Seeds loaded at Mundra Port could not be carried forward to the destination port at Piraeus, Greece. It is also submitted that M/s. Rainbow Export being the consignor of the goods had entrusted the work of shipment and had to arrange the berth in the ship, as per the Indian custom EDI System (ICES), there would be issuance of custom shipping bills and as per the contract, the cargo was loaded which actually weighed as 18175 Kgs. The Bill of Lading was issued to M/s. Hapag-Lloyd India Pvt. Ltd. and the complainant had instructed to tender the bill of lading directly to M/s. Rainbow Exports and not to release the bill of lading and invoice to M/s. MPRS Shipping & Logistics Pvt. Ltd. or to the present applicant. It is also submitted that the original bill of lading was retained by the applicant and thereby had committed breach of trust, had abused the complainant and had illegally extorted the money by way of wrong charges. 8. Relying upon the judgments of the Hon’ble Apex Court in the cases of Ajay Kumar Das v. State of Jharkhand and Another reported in 2011 (3) G.L.H. 677 and Kamaladevi Agarwal v. State of West Bengal reported in 2002 (1) SCC 55, learned Senior Counsel Mr. Jal Sol Unwala has submitted that the criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are pending and therefore, it cannot be considered that the trial Court is not justified to proceed with the criminal case either on law or on the basis of the propriety. Jal Sol Unwala has submitted that the criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are pending and therefore, it cannot be considered that the trial Court is not justified to proceed with the criminal case either on law or on the basis of the propriety. It is further submitted that this Court having the jurisdiction under Section 482 of the Cr.P.C. should be slow and should rather dwell on the facts of the case where still the complainant is required to be granted an opportunity to adduce his case before the trial Court. 9. Learned Additional Public Prosecutor submitted that any First Information Report should be quashed in accordance with the guidelines of the Apex Court and the parameters laid down therein and no First Information Report should be quashed at the initial stage. 10. This Court has heard the learned Senior Counsels appearing for the respective parties, the learned Additional Public Prosecutor and has perused the material on record. The facts of the case suggest that the present applicant is the Director of M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai and was the Agent of M/s. Rainbow Exports. The work was assigned to the present applicant’s/company for the transportation of Hulled Sesame Seeds. The main office of M/s. Rainbow Exports is situated at 1st Floor, Patel Shivabhai Ambaramdas Building, Opposite Unjha Pharmacy, Unjha 384 170, District Mehsana and there is an office in Ahmedabad also. M/s. Rainbow Exports is in the business of import and export and is mainly dealing in sesame seeds, cumin seeds, cashew, ginger, fennel seeds, peanuts and other agricultural products. The complainant had received an order for export of 19 Kgs. of hulled sesame seeds and the cargo was to be loaded at Mundra. The port of destination was Piraeus, Greece. M/s. Rainbow Exports had entrusted the duty of the clearance procedure to M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai and accordingly, as per the contract, the goods were loaded which had weighed 18175 Kgs. and the Bill of Lading No.HLCUMU1120204633 was issued to M/s. Hapag-Lloyd India Pvt. Ltd. - the Shipping Line Company. As per the charge-sheet, one Container (20’ x 8’6”) bearing No.TGHU 1217385, Seal : 847935 containing 727 Bags of hulled sesame seeds weighing approximately 18393.100 Kgs and net weight as 18175 Kgs. was to start from the port of Mundra to Piraeus, Greece. As per the charge-sheet, one Container (20’ x 8’6”) bearing No.TGHU 1217385, Seal : 847935 containing 727 Bags of hulled sesame seeds weighing approximately 18393.100 Kgs and net weight as 18175 Kgs. was to start from the port of Mundra to Piraeus, Greece. On behalf of the complainant, the applicant and M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai being the Agent had undertaken the work of exporting the goods through M/s. Hapag-Lloyd India Pvt. Ltd. As per the allegations in the charge-sheet, the bill of lading was not sent by M/s. MPRS Shipping & Logistics Pvt. Ltd. to M/s. Rainbow Exports and only on the pretext of earlier overdues, the same was retained and inspite of demanding the same by the complainant, the accused had not send the bill of lading and because of that, the container could not be handed over and since, the original bill of lading could not be sent to the party at Greece, the cargo remained pending and it is alleged that the port authority at Greece had destroyed the goods on 06.03.2013. It is alleged that the complainant had no outstanding dues and inspite of that a demand was made and the original bill of lading was retained by the applicant and thereby had caused huge losses to the complainant – Company to the tune of Rs.24,82,000/-. 11. Admittedly, the relation between the complainant and the applicant is that of a Principal and Agent and their relation would be covered as per the provisions of the Indian Contract Act, 1872 (hereinafter referred to in short as ‘the Act’). The Agent would have certain express and implied authority and here as stated hereinabove, the freight amount was paid by the applicant and his Company. Regular Civil Suit No.110 of 2015 has been filed in the Court of the learned Senior Civil Judge, Ahmedabad (Rural) and the value of the Suit is for Rs.25,27,329/- is shown as to be recovered from the applicant and M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai. The Suit is primarily with the allegations that the applicant and M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai had illegally collected the original Bill of Lading on 29.02.2012, the amount of the value of goods is shown as Rs.15,91,025/- with interest from 29.02.2012 till the date of filing of the Suit, i.e. 26.02.2015 and further legal expenses @ Rs.50,000/-. The Suit is primarily with the allegations that the applicant and M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai had illegally collected the original Bill of Lading on 29.02.2012, the amount of the value of goods is shown as Rs.15,91,025/- with interest from 29.02.2012 till the date of filing of the Suit, i.e. 26.02.2015 and further legal expenses @ Rs.50,000/-. The Suit is thus totally valued for Rs.25,27,329/- while the legal notice of the applicant to the complainant is for an amount of Rs.2,85,221/- which is also prayed with interest. Thus there are claims by the complainant and the allegations against the applicant is of illegally holding and retaining the bill of lading. The relation between the parties between the complainant as M/s. Rainbow Exports and that of the applicant and his company – M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai would be that of a Principal and Agent. Section 217 and Section 221 of the Act requires mention here. 12. Section 217 of the Act reads as under :- “217. Agent’s right of retainer out of sums received on principal’s account. - An agent may retain, out of any sums received on account of the principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business, and also such remuneration as may be payable to him for acting as Agent.” 13. Section 221 of the Act reads as under :- “221. Agent’s lien on principal’s property. - In the absence of any contract to the contrary, an agent is entitled to retain goods, papers, and other property, whether movable or immovable of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or account for to him.” 14. Considering this provision of law, the dealings between the parties are absolutely civil in nature. The legal correspondence between the parties, alongwith the running ledger accounts shows that the complainant – M/s. Rainbow Exports has been dealing with M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai since long. There has been money transaction between the two parties which gets reflected from the ledger accounts maintained by M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai and M/ s. Rainbow Exports. 15. There has been money transaction between the two parties which gets reflected from the ledger accounts maintained by M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai and M/ s. Rainbow Exports. 15. The Sections which have been invoked are 406, 409, 384, 504 and 114 of the Indian Penal Code. There is nothing in the complaint which points out that the material/property was entrusted to the applicant has been dishonestly defrauded for his own use. There is no such allegation of retaining any goods which was entrusted by M/s. Rainbow Exports to M/s. MPRS Shipping & Logistics Pvt. Ltd., Mumbai. The bill of lading was received, the goods were allowed through the shipping co., i.e. M/s. Hapag-Lloyd India Pvt. Ltd. There is no case of any cheating by way of any fraudulent or dishonest intention at the beginning of the transaction. The dealings between the complainant and the applicant and his company had been there for various transactions which were running for more than two years. The relation was contractual in nature. The provisions of the Act permit the Agent to retain any documents for his legal dues in absence of any Contract to the contrary. In addition, the Regular Civil Suit is pending before the Civil Court. 16. In the case of Indian Oil Corporation v. Nepe India Limited reported in 2006 (6) SCC 736 , the Hon’ble Apex Court while referring to the jurisdiction under Section 482 of the Cr.P.C. has laid down principles for the parties for quashing of the criminal proceedings which reads as under :- “It is to seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the above decision, the Hon’ble Apex Court has observed the fact of a growing tendency in business circles to convert purely civil disputes into criminal cases and has referred to the decision of the Hon’ble Apex Court in the case of G. Sagar Suri v. State of Uttar Pradesh reported in 2000 1 SC 360. The Apex Court was of the view that there is an impression that the civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, through any criminal prosecution should be deprecated and discouraged. 17. In the case of Y. Abraham Ajith (supra), the Hon’ble Apex Court while dealing on the subject of territorial jurisdiction pointed out to the crucial question as to whether any part of the cause of action arose within the jurisdiction of the concerned Court in terms of Section 177 of the Code it is place where the offence was committed. In essence it is the cause action for initiation of the proceedings against the accused. While allowing the Appeal, it was held with regard to the case therein that no part of cause of action arose in Chennai and therefore, the concerned Magistrate had no jurisdiction to deal with the matter. The proceedings were quashed and the complaint was ordered to be returned to the respondent No.2 and if she so desired, was granted the opportunity to file the same in the appropriate Court to be dealt with in accordance with law. 18. Here in this case, the question certainly arises as to how and why Cyber Crime Unit has registered the complaint whereas considering the facts of the case, no such allegations are made in the complaint of any cyber crime. 19. 18. Here in this case, the question certainly arises as to how and why Cyber Crime Unit has registered the complaint whereas considering the facts of the case, no such allegations are made in the complaint of any cyber crime. 19. In case of State of Haryana V. Bhajan Lal and Others reported in AIR 1992 SC 604 , the Apex Court made the following observations:- “8.1. 19. In case of State of Haryana V. Bhajan Lal and Others reported in AIR 1992 SC 604 , the Apex Court made the following observations:- “8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:- (a) where the allegations made in the First Information Report or 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 a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 20. Referring to the facts of the case and also applying the ratio laid down in the aforementioned judgments, this Court is of the view that the impugned First Information Report is totally unwarranted and the remedy lies by way of recourse to civil laws. The present First Information Report is a case where the civil dispute has been given a criminal colour and as observed by the Hon’ble Apex Court, such tendencies of settling the civil disputes through criminal proceedings should be deprecated and discouraged. Therefore, the Court is of the opinion that this is a fit case where the inherent powers of the Court under Section 482 of the Cr.P.C. could be exercised for securing the ends of justice. 21. In the result, the application is allowed. The impugned First Information Report bearing I-C.R. No.41 of 2013 registered with D.C.B. Police Station, Ahmedabad as also the charge-sheet and the proceedings of Criminal Case No.185 of 2014 pending before the Court of the learned Additional Metropolitan Magistrate, Court No.11, Ahmedabad and/or other consequential proceedings, qua the applicant herein is quashed and set aside. Direct Service is permitted.