Criminal Writ Petition No.548 of 2006

13th July, 2007

Petitioner Counsel: Mr. ANIL MARDIKAR
Respondent Counsel: Mrs. A. R. WASNIK,Mr. M. M. AGNIHOTRI

Cases Cited:
State of Haryana Vs. Ch. Bhajan Lal, AIR 1992 SC 604 [Para 5]
Ashok Chaturvedi Vs. Shitul H. Chanchani, (1998)7 SCC 698 [Para 7]
Lalmuni Devi Vs. State of Bihar, 2001(2) SCC 17 [Para 7]
Rajesh Bajaj Vs. State NCT of Delhi, 1999 ALL MR (Cri) 548 (S.C.)=AIR 1999 SC 1216 [Para 7]
Natural Sugar and Allied Industries Ltd. Vs. Razzak Hazi Gaffar, 2006(4) Mh.L.J. 771 [Para 8]

JUDGMENT

JUDGMENT :- This is an application under Section 482 of Code of Criminal Procedure. The petitioner seeks to quash the F.I.R. registered against him.

2. The facts are as follows -

Petitioner is a Broker. Respondent no.3 is a Proprietor of Ginning and Pressing Factory. On 6-4-2006 and 11-3-2006 the petitioner purchased 50 cotton bales on each date. The delivery was taken on the spot. The value of the goods was Rs.6,58,687/-. In the meanwhile, the petitioner also placed an order for further 1200 bales of cotton with respondent no.3 and one Umeshchandra Hage. Said transaction took place on 24-4-2006. Out of 1800 bales to be purchased, 1200 bales were to be purchased from respondent no.3 and 600 bales from Umeshchandra. Fax was sent to that effect to both respondent no.3 and Mr. Umeshchandra Hage. The transaction, however, did not materialise. The petitioner was, therefore, entitiled for damages due to the difference in the rate. Later, the petitioner contacted respondent no.3 and Mr. Hage and they admitted that they would pay Rs.4,80,000/- towards the damages. The amount was not paid. On the other hand, the petitioner had paid Rs.1,00,000/- to respondent no.3. Since the petitioner started demanding the amount, it is alleged that respondent no.3 lodged a total false report against the petitioner. It is contention of the petitioner that he has, in fact, purchased 100 bales from the respondent no.3. What the respondent no.3 in the report lodged with the police alleged is that the petitioner had sold those bales in his own name at Solapur and appropriated the price thereof. The Police have registered the offence upon the report submitted by respondent no.3 to the effect that the petitioner has misappropriated the price of 100 bales which he received from party in Solapur.

3. I have heard the learned counsel for the petitioner and the respondents.

4. Shri. Mardikar, learned counsel for the petitioner, submitted that the complaint has been filed by respondent no.3 essentially to avoid the payment of damages which the petitioner was entitled and which the petitioner was insisting upon respondent no.3 to pay. It may be that the complaint may have been filed with that purpose in mind. That, however, does not mean no offence is committed.

5. Shri. Mardikar, learned counsel, submitted that the case falls in category 7 as given in Bhajan Lal's case, reported in AIR 1992 SC 604 (State of Haryana and others Vs. Ch. Bhajan Lal and others). Obviously, he does not argue that the case falls in any other category. Category No.7 is defined as under -

7. 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.

The case to my mind does not fall in this category also. Shri. Mardikar submits that the F.I.R. is filed with an ulterior motive of avoiding payment of money due and to wreak vengeance. The F.I.R. could be to some extent said to have been filed with an ulterior motive but it is not filed with a view to wreak personal vengeance or grudge. In Bhajan Lal's case there was personal rivalry as well as political rivalry between Bhajan Lal on one part and Devilal on the other. It is out of spite and to take revenge that Bhajan Lal contended that the F.I.R. was filed. There is no personal rivalry between the parties in this case. On the other hand, prior to the incident the parties had business relations and the relations got strained only due to the incident in question. Therefore, there were no strained relations between the parties. It cannot in any case, therefore, be said that for wreaking personal vengeance this F.I.R. was lodged. The wreaking of personal vengeance would arise only when the relations are shown to be strained for quite some time. This is not the case here.

6. Shri. Mardikar then submitted that Annexure A and B - the invoices - would show that respondent no.3 had sold 100 bales of cotton on 6-4-2006 and 11-3-2006 worth Rs.6, 58, 687. He submitted that thereafter the respondent wrote a letter to the petitioner vide Annexure D to adjust the price of these bales against the amount due to him. He submitted that the two invoices would show that 100 bales were sold to the petitioner and therefore apparently the petitioner was owner and he could sale it in his name to third party. These invoices are in the name of the petitioner but then it is specifically alleged that petitioner was merely a Broker. Annexure C is a letter written by petitioner to respondent on 21-4-2006. The letterhead shows that the petitioner is a Broker. The contents further show that for that transaction he had taken brokerage of 1 1/2 %. Apparently, therefore, the petitioner was acting merely as a Broker. A Broker is supposed to sell the goods in the name of original owner and not in his own name. He merely helps buyer and seller to finalise the transaction of sale and purchase. In the circumstances, when the petitioner sold the goods in his name and took the price from the buyer and retained the amount with him, it must be prima facie said that ingredients of Section 407 and 420 of Indian Penal Code are made out. To my mind, the court cannot go into the other documents in possession of the petitioner to find out if the petitioner was authorised to appropriate the price of those 100 bales. That is a thing to be decided by the Investigating Officer during the course of the investigation or during the course of the trial by the court, when such documents are brought to their notice. This court is supposed to look in to the contents of F.I.R. and to find out if they disclose an offence.

7. Shri. Mardikar, learned counsel, relied upon a decision of the Supreme Court in (1998)7 SCC 698 (Ashok Chaturvedi and others Vs. Shitul H. Chanchani and another). In this case, it is observed that the complaint (F.I.R.) is liable to be quashed when allegations made in the complaint and the statement of complainant are taken on their face value, no offence is made out. This is no doubt a settled principle of law. But in this case at hand the ingredients of offence are certainly disclosed. In 2001(2) SCC 17 (Lalmuni Devi Vs. State of Bihar and others), the Supreme Court has held that even if a complaint may spell out a civil wrong, the court would not be justified to quash it if it also makes out an offence. In view of this, the argument of the learned counsel that the transaction in question was merely of a civil nature has to be negatived. This is precisely the case here. In yet another case reported in AIR 1999 SC 1216 : [1999 ALL MR (Cri) 548 (S.C.)] (Rajesh Bajaj Vs. State NCT of Delhi and others), it is observed that even if the facts narrated in the complaint reveal commercial transaction that is no ground to hold that offence of cheating would elude from such transaction.

8. This court also relying on a decision of the Supreme Court had made following observes in 2006(4) Mh.L.J. 771 (Natural Sugar and Allied Industries Ltd. Vs. Razzak Hazi Gaffar).

"It is not permissible at this stage to go into the truthfulness or otherwise of the allegations in the complaint. The only scrutiny that would be permissible, would be as to whether after reading the complaint as a whole and taking the averments on its face value and accepting them in entirety whether the ingredients to constitute an offence, for which the process has been issued are made out or not. Upon perusal of the complaint as a whole, and taking the allegations at their face value and accepting them in entirety, at least, prima facie, the ingredients to constitute the offence for which the process has been issued are made out. It will not be permissible for High Court to go into the documents which has been placed before it for the first time by both the parties, to find out whether the dispute is of civil nature, by appreciating the evidence."

If this ratio is applied, apparently the court cannot at this stage look into the documents that are filed by the parties for the first time. I have already observed that it is for the Investigating Officer to take cognizance of the documents produced before him during the interrogation and arrive at a conclusion with regard to the real nature of the transaction. In the circumstances, this court at this stage cannot enter into that arena. I am, therefore, of the considered view that the contents of F.I.R. do disclose the ingredients of the offence under Sections 407, 420 of Indian Penal Code. The F.I.R., therefore, cannot be quashed. The petition is dismissed.

Petition dismissed.