Allahabad High Court
Vinod Goel And Another vs State Of U.P. And 2 Others on 29 January, 2016
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 53 Reserved on 6.1.2016 Delivered on 29.1.2016 Case :- APPLICATION U/S 482 No. - 34389 of 2015 Applicant :- Vinod Goel And Another Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Akhilesh Kumar Singh,Radha Kant Ojha Counsel for Opposite Party :- G.A.,Ranjit Saxena Hon'ble Ramesh Sinha,J.
1. The present 482 Cr.P.C. application has been filed with a prayer to quash the entire proceeding of case no.21296 of 2015, State Vs. Vinod Goel, under Sections 406, 420 and 120B I.P.C., police station Phase-3, NOIDA, pending in the Court of learned Chief Judicial Magistrate, Gautam Buddh Nagar as well as charge sheet no.29 of 2015 dated 28.8.2015 submitted by the police of concerned police station in case crime no.685 of 2015, State Vs. Vinod Goel, under Sections 406, 420 and 120-B I.P.C., police station Phase-3, NOIDA, in the Court of learned Chief Judicial Magistrate, Gautam Buddh Nagar and the Court has taken cognizance on 15.9.2015.
2. The brief facts of the case are that an FIR was lodged against the applicants by one Rajesh Kumar Kapoor, Managing Director, Air Wave International Private Ltd., opp. party no.3 (here-in-after-referred to as 'the informant' which was registered as case crime No.685 of 2015, under Sections 406, 420, and 120-B I.P.C., police station-Phase-3, NOIDA, District Gautam Buddh Nagar, stating therein that M/s. Shyamjee Prepaid Services has already consumed all the goods of the informant Company and after selling the goods belonging to the informant Company, money has been deposited in the account of M/s. Shyamjee Prepaid Services. It was alleged that the title of the goods transferred to the Company M/s. Airwave International Private Ltd. and the and the goods were cleared from customs with the Companies title and in this respect bill of entry was also generated. All the goods removed by the accused persons and sold out. Rajesh Singhal involved in the consignment clearance and handing over consignment to the applicant no.1-Vinod Goel as well as other documents payments was to be made in 5 parts to the informant Company, but the same was not done and therefore in the notice sent by the informant Company,Rs. 33051386/- demanded within three days along with interest of 1% per day as per the agreement.
3. The investigation of the case was carried out and charge sheet have been submitted against the applicants for the offence in question under Sections 420, 406 & 120-B I.P.C. in the Court on 28.8.2015, on which the learned Magistrate has taken cognizance on 15.9.2015 on the said charge sheet and summoned the applicants for the offence in question, hence, the present 482 Cr.P.C. application for quashing of the impugned charge sheet and proceedings against the applicants.
4. He submitted that the applicants are running a partnership firm in the name and style of "Shyamjee Prepaid Services" , having its registered Office at B-1-C Flat No.51-A, Janakpuri, New Delhi-110058 and is engaged in the business of of import of hot rods, wire rods in coils from abroad and supplying its traders in the entire country, whereas the informant is a Private Limited Company having its registered office at B-233, NRI City, OMEGA-1, Greater NOIDA-201308 , U.P. and is engaged in business activities of mobile phones and registered with the DGET for import and export business. The firm of the informant approached the applicants' firm for facilitation of finance by way of opening the letter of credit facilities with applicants' firm. The terms and conditions so agreed were reduced into writing in the Minutes of Meeting held on 11.4.2015 between Sri Rajesh Kumar Kapoor, Managing Director and Sri Sahil Kapoor, Director of informant Company and Sri Vinod Goel, authorized signatory of the applicants' firm along with Mr. Vikas Jain, Chartered Accountant.
5. He further submitted that when the informant did not provide the copy of the invoices as per the terms and conditions of the Minutes of Meeting as agreed between the parties on various dates, i.e., 11.4.2015, 28.5.2015 and 1.6.2015 to the applicants, a Civil Suit No.251 of 2015 was filed by the applicants' Company in the Court of Civil Judge (Senior Division), District Kutch, Gujarat at Gandhi Dham on 30.6.2015 with the following prayer which is quoted here-in-below:
"(a). Pass a decree of declaration by declaring the plaintiff as an original importer as mentioned in Bill of Entry supplied by the customs department against the sale of material to the plaintiff by the defendant.
(b) Pass a decree of mandatory injunction directing the defendant company to supply the invoices to the plaintiff firm as per the terms and conditions of the minutes of meeting/Agreement.
(c) Pass a decree of permanent injunction restraining the defendant company not to put any undue pressure upon the plaintiff firm to remit the payment to the defendant company without supplying the invoices to the plaintiff firm as per the terms and conditions the minutes of meeting.
(d) Award the cost of the suit in favour of the plaintiff and against the defendant."
6. Thereafter, the applicants' Company also sent legal notices dated 1.7.2015, 7.7.2015 and 9.7.2015 with the specific request to the informant that he may either issue commercial invoices for the purchased material and in case of default he may take back the goods at his Ware house. A reply to the notice dated 1.7.2015 of the applicants Company was submitted by the informant through his counsel with absolutely false, baseless, bogus and absurd allegations levelling allegations of forgery against the applicants vide reply dated 13.7.2015 and on the same date, i.e., 13.7.2015 the present FIR was lodged against the applicants on false, frivolous and baseless allegations.
7. The applicants challenged the said FIR by means of filing Crl. Misc. Writ Petition No.18245 of 2015 before this Court in which the arrest of the applicants was stayed by this Court vide order dted 30.7.2015, copy of which has been annexed as Annexure-7 to the accompanying affidavit. He urged that from a perusal of the FIR, no offence whatsoever is disclosed against the applicants.
8. It has been contended by the learned counsel for the applicants that the dispute between the parties is purely of civil nature as there was a business transaction between them and the present case has been deliberately converted into a criminal case just as a pressure tactics to yield the demand of the informant Company by the applicants. He further submitted that the applicants are ready to pay the amount which is due to the informant Company as per the agreement dated 11.4.2015 between the parties. The applicants firm on several occasions requested the informant Company for supply of the invoices for entire transactions/business entered between the applicant and informant Company, but the informant has only given a proforma invoice to the applicants firm for three consignments and nor for remaining two consignments, therefore the applicants are unable to carry on its business as well as making payments to the informant. It was submitted that the applicants have already made payment for the first consignment, which was duly acknowledged by the informant because the payment was transferred in the account of the informant through RTGS, but after completion of entire business activities the informant failed to his obligations as agreed in the Minutes of Meeting dated 28.5.2015 and 1.6.2015. In pursuance of the sale agreement, the applicants have already paid money in the account of the informant through RTGS, i.e., Rs. 42,34,292.00/- in the head of consideration of the purchase amount in one transaction and second Rs.11,00,000/- also paid through RTGS in the account of the informant in head of consideration of purchase goods, the total amount of Rs.53,34,292.00/- had been paid by the applicants. It was submitted that in all exercise the applicants have already paid Rs.1,89,52,442.50/- and the applicants are further ready for making remaining payment to the informant subject to the condition that the commercial invoices be provided to the applicants as per the terms and conditions of the minutes of meeting and agreement.
9. He further submits that the informant deliberately avoiding in providing the invoices and other documents, hence, every time giving unsatisfactorily reply to the applicants and putting pressure for payment although the informant is knowing well that the terms of Minutes of Meeting/Agreement can only be completed when the informant shall supply the invoices and other documents and after that applicants shall make suitable arrangement for remaining payment.
10. He further submitted that the civil suit which was filed by the applicants against the informant, an order has been passed on 30.11.2015 on an application moved under Order 39 Rules 1 & 2 read with Section 151 C.P.C. for an ad-interim ex-parte order on which on 30.11.2015, by the IInd Additional Civil Judge, Gandhi Dhan,whereby status- quo order was passed.
11. He further argued that the informant is deliberately not issuing the commercial invoices as has been demanded and agreed between them and is compelling the applicants to pay the amount which is against the terms and conditions of the agreement between the parties.
12. In support of his argument, learned counsel for the applicants has placed reliance upon the judgment of the Apex Court in the case of Rajib Ranjan and Others Vs. R. Vijay Kumar reported in (2015) 1 SCC 513 & Inder Mohan Goswami and Another Vs. State of Uttranchal and Others, reported in (2007)12 SCC 1 and prayed that the present against the applicants be quashed.
13. Per contra, Sri Ranjit Saxena, learned counsel for opp. party no.3 has opposed the prayer for quashing and have submitted that it is a case of serious fraud and cheating as the title of goods transferred to M/s. Airwave International Private Ltd. and the goods were cleared from the customs with the companies title and in this respect bill of entry was also generated. All the goods removed by the accused persons and sold out. Rajesh Singhal involved in the consignment clearance and handing over consignment to applicant no.1-Vinod Goel as well as other documents payments was to be made in five parts to the informant but the same was not done. The further submitted that as per the current status, total amount of money due for payment is Rs.9.04 Crores, i.e., Rs.90433953/-
14. It is next argued that all the goods have already been sold by the applicants and, thus, all the averments with regard to the invoices are to misguide the Court and moreso the goods which has already sold out illegally by the applicants are required to enter in the godowns of the informant Company which is governed by the excise law and as per the excise law goods are supposed to carry time in and time out in the invoices since the material has not been issued by the informant Company, therefore, the informant is not in a position to issue the invoices, however, one invoice can be issued after receiving the entire due payment. It is further contended that filing of a civil suit by the applicants was an attempt to divert the attention of the Court from the criminal liabilities of the applicants which has been established from the records and from the own accounts of the M/s. Shyamjee Prepaid Services.
15. He further argued that the two cheques no.'920901' dated 27.5.2015 and another no.'920902' dated 1.6.2015 of Dautsche Bank, New Delhi given as security by the applicants to the informant Company were stop payment on 2.7.2015 by M/s. Shyamjee Prepaid Services. He further contended that the applicants' firm is never intending to pay any money to the informant Company.
16. It is next contended that it is wrong to say that the dispute between the parties, if any, is purely of civil nature. The Investigating Officer has collected cogent evidence against the applicants and has submitted charge sheet against the applicants.
17. He further argued that the informant has challenged the maintainability of the suit filed by the applicants before the Gujarat High Court in Special Civil Application No.20241 of 2015, M/s. Airwave International Pvt. Ltd. Vs. Shyamjee Prepaid Services. There prayer made in paragraph no.8 therein is as follows:
(A) Your Lordship may be pleased to issue a writ of Prohibition or any other writ order or direction setting aside orders below Ex 14 dated 6.11.2015 and Ex 5 dated 30.11.2015 in Regular Civil Suit No.251/2015 and be pleased to direct to reject the plaint.
(B) Pending the admission, hearing and final disposal of this application, Your Lordship may be pleased to stay the further proceedings arising out of Regular Civil Suit No.251/2015.
(C) Your Lordship may be pleased to call for Record and proceedings of Regular Civil Suit No.251/2015.
(D) Your Lordship may be pleased to direct respondent to pay costs.
(E) Any other and further reliefs, as may be deemed fit and proper by this Hon'ble Court, may kindly be granted, in the interest of justice."
18. He submitted that in the said application, notice has been issued to the applicants and relief in the terms of para 8 (B) of the said application has been granted by the Gujarat High Court vide order dated 18.12.2015.
19. He further argued that civil suit which has been filed by the applicants has been challenged on the ground of territorial jurisdiction as the Civil Court at Gujarat had no jurisdiction to entertain the said suit as the cause of action arose at Gautam Budh Nagar.
20. In support of contention, learned counsel for the complainant has placed reliance upon the judgment of the Apex Court in the case of Ganga Dhar Kalita Vs. The State of Assam and others, reported in (2015) 9 SCC 647, Gopakumar B. Nair Vs. C.B.I. and Another reported in (2014) 5 SCC800 & Sushil Suri Vs. C.B.I. and Another reported in (2011) 2 SCC (Cri) 764 and submits that simply because the pendency of the civil suit between the parties cannot be a ground for quashing of the criminal proceedings.
21. Learned AGA also adopted the argument of learned counsel for opp. party no.3
22. Heard Sri Radha Kant Ojha, learned counsel Senior Advocate, assisted by Sri Akhilesh Kumar Singh, learned counsel for the applicants, Sri Ranjit Saxena, learned counsel for opp. party no. 3, Sri Nitin Srivastava, learned AGA appearing for the State and perused the record.
23. Considered the submissions advanced by the learned counsel for the parties and perused the record.
24. It an admitted fact that there was business transaction between the parties and some agreements were also executed between them regarding mode of payment. The applicants have already paid some amount to the informant which is also admitted by them and it appears that during the business transactions, there arose dispute between the parties regarding payment of money for which the applicants have also being demanding the commercial invoices for making payment but the informant has been unable to supply the same due to some business difficulties by which transactions were carried out between the parties. The applicants are still ready to pay the amount due to the informant provided that they supply the necessary commercial invoices to the applicants, for which they have also filed a civil suit for permanent injunction before the Civil Judge (Senior Division), Kutch, Gandhi Dham, in which a status-quo order has been passed by the competent court on 30.11.2015 on the same issue for which the present FIR has been lodged by the informant.
25. No doubt, Special Civil Application has also been filed by the informant before the Gujarat High Court challenging the orders dated 6.11.2015 and 30.11.2015 passed by the Civil Judge (Senior Division) and proceedings have been stayed by the Gujarat High Court vide order dated 18.12.2015 on the ground of territorial jurisdiction, but it has not been disputed by the learned counsel for opp. party no.3 that the said suit has been filed for money dispute between them and the informant Company can realize the same by establishing their claim in the civil suit before the competent court.
26. It further transpires from the record that the informant is demanding money from the applicants which they are unable to pay as the informant have failed to furnish the commercial invoices to the applicants, hence, the entire dispute between the parties appears to be only payment of money for the business transactions between the parties.
27. The Apex Court in the case of Rajib Ranjan and Others Vs. R. Vijay Kumar (supra) has held that if the allegations are made mischievously as afterthought, just to give colour of criminality to a civil case, then the filing of complaint or FIR could not be said to be bonafide and it only amounts to misuse and abuse of process of law. Hence, it has quashed the proceeding of the said case.
28. Similarly, the Apex Court in the case of Inder Mohan Goswami and Another Vs. State of Uttranchal and Others (supra) has laid down certain parameter for quashing of the proceeding and it has held that while exercising the powers under Section 482 Cr.P.C., the Court must ensure that the criminal prosecution is not used as harassment and for seeking private vendetta or with an ulterior motive to pressure the accused.
29. From the perusal of the FIR, impugned charge sheet and the material collected during investigation, no offence under Sections 406, 420 and 120B I.P.C. is made out against the applicants and a civil dispute between the parties is being converted into criminal liability by opp. party no.3 which amounts to misuse of process of law and also gross abuse of the process of Court.
30. The case laws of the Apex Court which have been cited by the learned counsel for the informant are distinguishable from the facts and circumstances of the present case.
31. Thus, in view of the law laid down by the Apex Court in the case of Rajib Ranjan and Others Vs. R. Vijay Kumar (supra) & Inder Mohan Goswami and Another Vs. State of Uttranchal and Others (supra) and the foregoing discussions, it is a fit case for this Court to exercise its power under Section 482 Cr.P.C. to prevent gross abuse of the process of the Court and to quash impugned charge sheet, cognizance order dated 15.9.2015 passed by C.J.M., Gautam Budh Nagar and all consequential proceedings of the aforementioned case against the applicants are hereby quashed accordingly.
32. The present 482 Cr.P.C. application stands allowed.
Order Dated: 29.01. 2016.
NS