Delhi District Court
Sh. Pradeep Kumar vs Nitco Tiles Ltd on 17 July, 2010
1
IN THE COURT OF MS. SANTOSH SNEHI MANN
ADDITIONAL SESSIONS JUDGE (CENTRAL)
TIS HAZARI COURTS, DELHI
Criminal Revision No. : 23/2010
Sh. Pradeep Kumar
S/o Sh. Jai Kishan Das Gupta
Proprietor of M/s Garg Traders
1st Floor, 2862, Bazar Sirkiwalan,
Hauz Qazi, Delhi - 110006. ............. Petitioner/
Revisionist
VERSUS
1. Nitco Tiles Ltd.
2. Sh. Sanjay Arora (AGM-Sales)
S/o Not known
Both the above accused at Regional
Office of the accused #1 at 60/2,
Yusuf Sarai (Adjacent to Indian Oil
Bhawan), New Delhi - 110016.
3. Sh. Vivek Talwar (CMD) S/o Sh. P. N. Talwar
4. Sh. Sushil Matey (V. P. Sales & Mktg) S/o Not known
5. Sh. Iyer Balasubramanian (AGM-Accounts) S/o Not known
6. Ms. Asha Arunkumar Bhagat (Officer at Factory)
W/o Not Known
Accused #3 to 6 at the Office of accused # 1 as under :
C/o M/s Nitco Tiles Ltd.,
8th Floor, Maker Chambers-III, Nariman Point,
Mumbai - 400021. ............ Respondents
Date of filing of Criminal Revision : 25.01.2010
Date of conclusion of arguments : 08.06.2010
Date of order : 17.07.2010
Revision under Section 397/407 of Cr. P. C. against the
order dated 18.12.2009 of the Court of Sh. Deepak
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Dabas, MM, PS Hauz Qazi at Tis Hazari Courts, Delhi for
disposal in-limine of the criminal complaint of the
petitioner being Criminal Complaint Case #98/1/1-HQ
(Pradeep Kumar V/s Nitco Ltd.)
ORDER :
Petitioner/revisionist is aggrieved by the order dated 18.12.2009 of the Ld. Metropolitan Magistrate vide which his complaint under Section 406/420/467/468/469/471/506 read with Section 120-B of Indian Penal Code (hereinafter referred as "IPC") has been dismissed on the ground that it does not disclose commission of any offence against the accused persons and thus no ground for summoning them.
2. Notice was not given to the respondents as they have not been summoned by the Ld. Trial Court.
3. I have heard Sh. Rajesh Tyagi, Ld. Counsel for the petitioner/revisionist and carefully perused the record.
4. The allegations against the respondents in the complaint are that :
(a) In the year 1999 'Garg Tubes', a Sole Proprietorship Firm of Jai Kishan Garg, father of the petitioner/revisionist, became dealer for products of respondent No. 1 company and as per the terms and conditions of the agreement Rs. 2 lacs were deposited as security by way of a cheque on behalf of Garg Tubes. The two sides of the B C D E D F G H I J K D L D M F N M O P Q R P"S$T S U&C G V"J J)W+X-Y E.G C-Z0R1L2N3D5[7\ M+]9D H5J L2^;[5V _$`?a@[5b"J$C L 3 business agreement started acting on the basis of this agreement, which continued for some years. The period is though not specifically mentioned in the complaint, from the statement of CW-1 Sh. Pradeep Kumar Garg and the documents, it appears that it continued till the year 2000. The details of those transactions and correspondence between the two parties is not relevant for the present purpose.
(b) In the year 2000 a fresh business agreement was entered into between respondent No. 1 and M/s J. R. Distributors, a sole proprietorship concern of one Ravi Garg, the younger brother of the petitioner/revisionist. At the time of this agreement, a blank cheque was given by the brother of the petitioner/revisionist to the respondent as security.
(c) Thereafter, the two sides were in correspondence with each other relating to the business dealings including the claims and counter-claims till March, 2004 when the blank cheque, which was given by Mr. Ravi Garg, brother of the petitioner/complainant to the respondent company as security on c d e f e g h i j k l e m e n g o n p q r s q"t$u t v&d h w"k k)x+y-z f.h d-{0s1m2o3e5|7} n+~9e i5k m2;|5w $?@|5"k$d m 4 behalf of M/s J. R. Distributors, was used and presented by the respondent for satisfaction of its claim against M/s J. R. Distributors.
(d) This cheque on presentation was not
honoured and thus a Notice dated
16.03.2004 Ex. CW-1/7 was given by the respondent, addressed to Ravi Garg for M/s J. R. Distributors, brother of the petitioner/complainant. The other documents in the same transaction, which are essential for the present purposes are Ex. CW-1/8, letter of the respondent dated 15.11.2003, requesting M/s J. R. Distributors for settlement of accounts including the payment against the cheque No. 188905 dated 03.10.2003; Mark Z-2, photocopy of the letter of Ravi Garg, Proprietor of M/s J.
R. Distributors dated 12.03.2004 to the Bank for stopping the payment against the cheque No. 188905 dated 03.10.2003 and Ex. CW-1/9, letter dated 31.03.2004 on behalf of the respondent by its lawyer to Ravi Garg, Proprietor of M/s J. R. Distributors wherein M/s J. R. Distributors has been called upon to make the payment of "$ & " )+- . -012357 +9 5 2 ;5 ¡$¢?£@5¤"$ 5 Rs. 95,738.00.
(e) In November and December, 2004 respondent company filed three criminal complaints against one Jai Kishan Garg, father of the petitioner/responent vide Ex. CW-1/10, Ex. CW-1/11 and Mark Z-7 under Section 420 Cr. P. C. in the Court of Additional Chief Metropolitan Magistrate at Mumbai, which are still sub-judiced.
5. The order of the Ld. Trial Court is challenged on the ground that it is bad in law and facts; that it is capricious and against the facts on record; that it is against the well-known concept in the criminal jurisprudence that a criminal case can be brought to motion by anyone and not necessarily by the victim and that the petitioner in this case is the brother and son of the victims and the subject matter of the complaint relates to the family business; that the accused abused the trust reposed in them by fabricating the cheque, which was obtained in good faith as collateral security and lastly that Ld. Trial Court has misread the arguments, which were resulted in miscarriage of justice.
6. I have carefully considered the submissions put- forth alongwith the material in the Ld. Trial Court Record.
7. There is no dispute about the fact that respondent was having the business dealings with Proprietorship Firms in ¥ ¦ § ¨ § © ª « ¬ ® § ¯ § ° © ± ° ² ³ ´ µ ³"¶$· ¶ ¸&¦ ª ¹" )º+»-¼ ¨.ª ¦-½0µ1¯2±3§5¾7¿ °+À9§ «5 ¯2Á;¾5¹ Â$Ã?Ä@¾5Å"$¦ ¯ 6 the names of family members of the petitioner/complainant including his father and brother from 1999 till the year 2003 when the dispute arose between them about accounts based on claims and counter-claims. Correspondence was exchanged between the two sides asserting their respective positions and claims. As per complaint, while the accounts were pending settlement, respondent used and presented a blank cheque towards satisfaction of its claim, which was given by Ravi Garg, brother of the Complainant and Proprietor of M/s J. R. Distributors, as security. As per record, this cheque was dis-honoured on presentation as its payment was stopped by Ravi Garg, brother of the Complainant and Proprietor of M/s J. R. Distributors. Thereafter, respondent company filed three criminal complaints in the months of November and December, 2004 against Jai Kishan Garg, father of the petitioner, which are sub-judiced before the Mumbai Courts.
8. Ld. Trial Court while dismissing the complaint has discussed the facts about transactions in detail and gave findings that no wrongful loss has been caused to the complainant; dispute between the parties is of civil nature pertaining to settlement of accounts; the cheque in question was handed over to the accused in the course of business; all the communication has been between the accused and the brother of the complainant and that there is nothing on record to show that the complainant himself dealt with the accused Æ Ç È É È Ê Ë Ì Í Î Ï È Ð È Ñ Ê Ò Ñ Ó Ô Õ Ö Ô"×$Ø × Ù&Ç Ë Ú"Î Î)Û+Ü-Ý É.Ë Ç-Þ0Ö1Ð2Ò3È5ß7à Ñ+á9È Ì5Î Ð2â;ß5Ú ã$ä?å@ß5æ"Î$Ç Ð 7 persons; dealership was allotted by the accused to Ravi Garg, brother of the complainant and all the communications about meeting and payment were addressed to him; the criminal complaints have been filed by the accused against father of the complainant and that Notice was given by the accused to the brother of the complainant and not to the complainant. Ld. Trial Court further held that the complainant has no role to play in the transaction and thus complaint is without merits.
9. There is no denying of the legal position that just because civil law can be taken recourse to would not necessarily mean that the criminal proceedings are barred, but their exists a distinction between pure contractual dispute of a civil nature and the offence of cheating and related offences. It has been repeatedly held in number of decisions by the Supreme Court that a matter which essentially involves dispute of civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree, which is non-existent {Reference to recent decision of the Supreme Court in "V. Y. Jose and Another V/s State of Gujarat and Another (2009) 3 Supreme Court Cases 78"}.
10. Further, it is a settled law that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. {Reference to the ç è é ê é ë ì í î ï ð é ñ é ò ë ó ò ô õ ö ÷ õ"ø$ù ø ú&è ì û"ï ï)ü+ý-þ ê.ì è-ÿ0÷1ñ2ó3é ò 9é í5ï ñ 5û "ï$è ñ 8 Supreme Court decision in "Hira Lal Hari Lal Bhagwati V. C.B.I. (2003) 5 SCC 257"}.
11. In the present case, the grievance of the complainant is that by filling up the blank chqeue and then using it towards satisfaction of disputed claims in the accounts by the respondents amounts to criminal breach of trust, an offence punishable under Section 406 IPC, cheating (Section 420 IPC), forgery of valuable security (Section 467 IPC), forgery for the purpose of cheating (Section 468 IPC), for the purpose of harming harming reputation (Section 469 IPC) and using forged document as a genuine (Section 471 IPC). It is also claimed that the above said offences have been committed as a part of larger conspiracy (Section 120-B IPC) amongst the respondents and has the effect of criminal intimidation (Section 506 IPC).
12. The respondent company held the blank cheque, issued by Ravi Garg, brother of the respondent and Proprietor of M/s J. R. Distributors, in due course of the business transactions. Handing over the blank cheque to the respondent in ordinary circumstances would mean implied authorization to the holder/ respondent to use it on its discretion in the absence of any material to the contrary. In this situation filling of the amount in the blank cheque by the respondent cannot be deemed to be forgery and similarly the presentation of such a cheque cannot be deemed to be an act "!# %$ '& )( &+*-,".0/ ,21 3 1 45 62 - 87 9;:
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without authority. To constitute an offence under the IPC, 'mens rea' i.e. criminal intention is an important component alongwith the 'Act'. There exists a clear distinction between a pure contractual dispute of civil nature and an offence of cheating. Breach of contract cannot be permitted to initiate criminal proceedings until and unless ingredients of offence are made out.
13. The entire material on record shows that the dispute between the respondents and business concerns, run by the family members of the petitioner/revisionist is purely of civil nature. The facts on record do not constitute the offence of criminal breach of trust under Section 406 IPC. The allegations and the documents on record do not show commission of offence of cheating and forgery punishable under Sections 420, 467, 468, 469 and 471 of IPC. There is not even an iota of material on record to even indicate criminal intimidation,an offence punishable under Section 506 IPC. In the totality of circumstances there is no material to suggest criminal conspiracy on the part of the respondents, which is an offence under Section 120-B IPC.
14. This Court is constrained to observe that there is nothing on record to show or even to suggest that petitioner himself was involved or has been an effected party at any stage of the alleged transactions. Though, the criminal adjudicatory system can be put in motion by anybody if an J K L M L N O P Q R"S#L%T L'U N)V U+W-X"Y0Z X2[ \ [ ]5K O ^2R-R8_ `;a M<O"K;b>Z?T V@L c d U eDL P R#T f c ^ g h i c j2R K T 10 offence is committed, but when it is done by a complaint about the offence of cheating and forgery etc. and the facts strongly indicate a civil transaction, locus standi of the person approaching the Court does become an issue. A criminal complaint for serious cognizable offences cannot be entertained as a Public Interest Litigation because the consequences are penal. It is incumbent on the Courts to see that people are not harassed or intimidated in the garb of such complaints. This Court has no hesitation in observing that the present complaint seems to have been filed as a counter-blast to the three criminal complaints filed by the respondent company against the family members of the petitioner/ revisionist.
15. In view of the above observations and discussions, this Court hold that there is no inherent error and illegality in the impugned order dated 18.12.2009 passed by Ld. Trial Court. The revision petition is hence dismissed.
16. The Trial Court Record be sent back along with a copy of this order.
17. Criminal Revision Petition be consigned to Record Room.
Announced in the open court (Santosh Snehi Mann) on 17/07/2010 Addl. Sessions Judge (Central) Tis Hazari Courts, Delhi k l m n m o p q r s"t#m%u m'v
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