Bombay High Court
Mahindra & Mahindra Co. Ltd vs The State Of Maharashtra on 19 September, 2008
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 108 OF 1999
1. Mahindra & Mahindra Co. Ltd.,
(Farm Equipment Sector),
Worli Road 13, Worli, Bombay.
2. Anand Mahindra,
Managing Director,
Mahindra & Mahindra Co. Ltd.,
Mumbai, R/o Office, situated
at Gateway of India, Mumbai.
3. Ravi Mathur,
Area Manager, Mahindra &
Mahindra Co. Ltd. (Farm Equipment
Sector), Tadiwala Road,
Dr. Ramabai Ambedkar road, Pune.
4. Karimattam Joseph Davasia,
President and Executive Director
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
5. Rajendra Kumar Bhurat,
Head of Marketing
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
6. Atul P. Sinha,
Deputy General Manager
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai. PETITIONERS
VERSUS
1. The State of Maharashtra
2. Ramniwas Kachardas Bhandari,
Nath Automobiles, Ghai Chambers,
Jalna Road, Aurangabad. RESPONDENTS
.....
Mr. Shirish Gupte, Senior Counsel, with Mr. A.S.
Bajaj, advocate for the petitioners.
Mr. N.H. Borade, A.P.P. for respondent No. 1/State.
Mr. S.M. Godsay, advocate for respondent No. 2.
.....
WITH
CRIMINAL APPLICATION NO. 472 OF 1999
1. Mahindra & Mahindra Co. Ltd.,
(Farm Equipment Sector),
Worli Road 13, Worli, Bombay.
2. Anand Mahindra,
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Managing Director,
Mahindra & Mahindra Co. Ltd.,
Mumbai, R/o Office, situated
at Gateway of India, Mumbai.
3. Ravi Mathur,
Area Manager, Mahindra &
Mahindra Co. Ltd. (Farm Equipment
Sector), Tadiwala Road,
Dr. Ramabai Ambedkar road, Pune.
4. Karimattam Joseph Davasia,
President and Executive Director
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
5. Rajendra Kumar Bhurat,
Head of Marketing
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
6. Atul P. Sinha,
Deputy General Manager
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
VERSUS
Worli, Mumbai.
1. The State of Maharashtra
PETITIONERS
2. Ramniwas Kachardas Bhandari,
Nath Automobiles, Ghai Chambers,
Jalna Road, Aurangabad. RESPONDENTS
.....
Mr. A.S. Bajaj, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for respondent No.1/State.
.....
WITH
CRIMINAL APPLICATION NO. 2146 OF 1997
1. Anand Mahindra,
Executive, Mahindra &
Mahindra Co. Ltd.,
(Farm Equipment Sector)
Marketing Division, Worli,
Road No. 13, Mumbai.
2. Ravi Mathur,
Area Manager,
Mahindra & Mahindra Limited,
Tractor Division, Area Office,
Pune.
3. Bridendrakumar Rajkumar Shrivastav,
Sales Officer, Mahindra & Mahindra
Ltd., Tractor Division, Area Office,
Pune. PETITIONERS
VERSUS
1. State of Maharashtra
2. The Police Inspector
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CIDCO Police Station,
Aurangabad.
3. Arvind Meghashyam Aradhye,
R/o Vrandavan Colony, Opp.
S.T. Stop, Aurangabad. RESPONDENTS
.....
Mr. Shirish Gupte, Senior Counsel, with Mr. A.S.
Bajaj, advocate, for the petitioners.
Mr. N.H. Borade, A.P.P. for respondents No. 1 & 2.
Mr. B.K. Pawar, advocate holding for Mr. Ajit Kale,
advocate for respondent No. 3.
.....
WITH
CRIMINAL APPLICATION NO. 2278 OF 1997
1. Anand Mahindra,
Executive, Mahindra &
Mahindra Ltd., Farm
Equipment Sector, Marketing
Division, Varali Road No. 13,
Mumbai.
2. Ravi Mathur,
Area Manager,
Mahindra & Mahindra Ltd.,
Tractor Division, Area Office,
Pune.
3. Bridendrakumar Rajkumar Shrivastav,
Sales Officer, Mahindra and Mahindra
Ltd., Tractor Division, Area Officer,
Pune.
4. Rajkumar Burhat,
Mahindra & Mahindra Ltd.,
Gateway Building, Appollo
Bunder, Mumbai. PETITIONERS
VERSUS
1. State of Maharashtra
2. The Police Inspector,
CIDCO Police Station,
Aurangabad.
3. Vishwanath Bala Sapkal,
R/o Vasai, Taluka Sillod,
Dist. Aurangabad. RESPONDENTS
.....
Mr. Shirish Gupte, Senior Counsel, with Mr. A.S.
Bajaj, advocate for the petitioners.
Mr. N.H. Borade, A.P.P. for respondents No. 1 & 2.
Mr. B.K. Pawar, advocate, holding for Mr. Ajit
Kale, advocate for respondent No. 3.
.....
AND
CRIMINAL APPLICATION NO. 1648 OF 1998
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Ramnivas s/o Kachardas Bhandari,
R/o Plot No. 31, N-2, CIDCO,
Aurangabad. PETITIONER
VERSUS
1. The State of Maharashtra
2. The Police Sub Inspector,
Police Station, CIDCO,
Aurangabad.
3. Arvind s/o Meghshyam Araddhe,
R/o Vrandavan Colony, Opp.
S.T. Stop, Aurangabad.
.....
Mr. S.M. Godsay, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for respondents No. 1 & 2.
Mr. B.K. Pawar, advocate, holding for Mr. Ajit
Kale, advocate for respondent No. 3.
.....
WITH
CRIMINAL APPLICATION NO. 1869 OF 1997
Ramniwas s/o Kachardas Bhandari,
R/o Nath Automobiles, Jalna Road,
Aurangabad, Dist. Aurangabad.
VERSUS
PETITIONER
1. The State of Maharashtra
2. The Superintendent of Police,
Ahmednagar, Dist. Ahmednagar. RESPONDENTS
.....
Mr. S.M. Godsay, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for respondents.
.....
WITH
CRIMINAL APPLICATION NO. 1700 OF 1997
Ramnivas s/o Kachardas Bhandari,
R/o Plot No. 31, N-2, CIDCO,
Aurangabad. PETITIONER
VERSUS
1. The State of Maharashtra
2. The Commissioner of Police,
Aurangabad. RESPONDENTS
.....
Mr. S.M. Godsay, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for the respondents.
.....
[CORAM : V.R. KINGAONKAR, J.]
DATE OF JUDGEMENT RESERVED : 1st September, 2008
DATE OF JUDGEMENT PRONOUNCED : 19th September, 2008
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JUDGEMENT :
1. These are two (2) groups of petitions which are being disposed of together in order to avoid overlapping consideration of identical questions of law and facts. The first group of petitions comprise of petitions filed by Mahindra and Mahindra Co. Ltd.
and its officers. Another group of petitions comprise of petitions filed by Ramnivas Kachardas Bhandari, who is respondent No. 2 in the first group of petitions.
2. By Writ Mahindra and Mahindra Co.
Petition No. Ltd.
108/1999, petitioners
(hereinafter referred
to as "M&MC Ltd.", for sake of brevity) and others
seek quashing of process issued in and proceedings of
a private complaint case instituted by respondent No.
2 - Ramnivas bearing R.C.C. No. 104/1998 pending on
file of learned Judicial Magistrate (F.C.),
Aurangabad, for offences punishable under section 467, 468, 420, 409, 471 read with section 34 of the I.P. Code against them. They filed Criminal Application No. 472/1999 seeking production of certain documents in the above writ petition. Anand Mahindra and others filed remaining two (2) petitions in the first group seeking quashing of first information reports registered vide Crimes No. I-196/1997 and No. I-218/1997 at CIDCO Police Station, Aurangabad for offences punishable under section 406 and 420 read ::: Downloaded on - 09/06/2013 13:53:02 ::: (6) with section 34 of the I.P. Code.
3. Petitioner Ramnivas seeks quashing of first information report registered against him vide Crime No. 196/1997, at CIDCO Police Station, Aurangabad for offences punishable under section 406, 420 read with section 34 of the I.P. Code and first information report registered vide Crime No. 31/1997 at Tofkhana Police Station, Ahmednagar, for offences punishable under section 420, 467 and 468 of the I.P. Code. His third petition (Criminal Application No. 1700/1997) is for anticipatory bail in context of the first information report registered vide Crime No. 97/1997 at CIDCO Police Station, Aurangabad.
4. Indisputably, since 1991, petitioner Ramnivas Bhandari was running business as dealer of Tractors of M&MC Ltd., in the name and style as "Nath Automobiles, Aurangabad". The dealership was approved by M&MC Ltd.
as per terms of the dealership agreement. The dealership agreement was to the effect that M&MC Ltd.
would provide tractors and trolley vehicles to Nath Automobiles on cash payment basis. The agreement was to transact business on principal to principal basis.
Admittedly, Nath Automobiles was not agent or subagent of M&MC Ltd. There is no dispute about the fact that M&MC Ltd. raised certain objections regarding working of the proprietary firm run by petitioner Ramnivas ::: Downloaded on - 09/06/2013 13:53:02 ::: (7) Bhandari i.e. Nath Automobiles in the year 1996. By letter dated 31st July, 1996, the latter was informed to obtain and provide Letter of Credit (L/C) for Rs.
10 lacs as per the agreement. It appraised Nath Automobiles regarding complaints received from customers pertaining to malpractices adopted in the business and false assurances given regarding delivery of the tractor vehicles. It was further informed to Nath Automobiles that decision was, therefore, taken to terminate dealership agreement as per clause (18) thereof. Petitioner - Ramnivas Bhandari, however, continued to accept the orders from customers for supply of the tractors. He urged for continuation of the dealership. He also assured to open a Letter of Credit for Rs. 20 lacs in name of M&MC Ltd. By his letter dated 1st October, 1996, he further assured the Company that demand drafts will not be accepted from the customers by him in the name of M&MC Ltd., but all the dealings will be done through the Letter of Credit only. The proposal was accepted on the conditions mentioned in the letter and production of Letter of Credit from the Bank. The arrangement could not be worked out seemingly because he did not produce the Letter of Credit, as assured.
5. In the meanwhile, some of the customers from whom orders were accepted by Nath Automobiles made complaints against the dealer for non-delivery of the ::: Downloaded on - 09/06/2013 13:53:02 ::: (8) vehicles. They made such complaints to the Company.
There was no privity of contract between M&MC Ltd.
and those customers from whom payments were accepted by Nath Automobiles. The concerned officers of M&MC Ltd. naturally advised such customers to approach the dealer. The dealer tossed the buck and eventually told the customers that the vehicles were not supplied by M&MC Ltd. The frustrated customers lodged various complaints at the CIDCO Police Station, Kranti Chowk Police Station at Aurangabad and also at Tofkhana Police Station, Ahmednagar.
6. The dealer lodged first information report at CIDCO Police Station, Aurangabad against M&MC Ltd and its officers. The dealer - Ramnivas Bhandari subsequently instituted a private complaint case (R.C.C. No. 104/1998) alleging that he was duped by M&MC Ltd and its officers. He averred that he had sent twelve (12) demand drafts of Rs. 22,34,256/- to M&MC Ltd. alongwith orders for supply of tractors.
The demand drafts were encashed by M&MC Ltd. and were credited in its account. He averred that inspite of such payments made by him, the tractor vehicles were not supplied by M&MC Ltd. He met the officers of M&MC Ltd., but it was invain. He learnt that the demand drats were credited to the account of M/s Wasan Automobiles, Nasik instead of crediting them to his account. The officers of M&MC Ltd. gave evasive or ::: Downloaded on - 09/06/2013 13:53:02 ::: (9) false replies to his queries. He, therefore, met Anand Mahindra and urged to look after his grievances with sympathetic view. He alleged that Anand Mahindra told him that since the latter's friend M/s Wasan Automobiles was sued by him, he will have to pay its price. He was threatened that he will be imprisoned.
He, therefore, issued notice dated 08-10-1997 to M&MC Ltd. which was falsely replied on 28-10-1997. It was reiterated by the latter that 12 demand drafts were received from M/s Wasan Automobiles, Nasik and Ahmednagar and not from him. He alleged, therefore, that he was cheated and the amounts sent by him came to be misappropriated by M&MC Ltd. and its officers.
The learned Judicial Magistrate considered the verified statement of complainant - Ramnivas Bhandari
- and came to conclusion that a prima facie case was made out for issuance of process under section 420, 409, 467, 468, 471 and 506 read with section 34 of the I.P. Code. Hence, process was issued by order dated 12-10-1998. The said order and the proceedings of the private criminal case are being challenged by M&MC Ltd. and others in Writ Petition No. 108/1999. In the same proceedings, an application (Criminal Application No. 472/1999) is filed for production of certain documents.
7. Anand Mahindra and others seek to challenge first information report, registered vide Crime No. ::: Downloaded on - 09/06/2013 13:53:02 ::: (10) I-196/1997 at CIDCO Police Station, Aurangabad on a complaint lodged by one of the customers, namely, Arvind Meghashyam Araddhye. In his complaint, the customer - Arvind alleged that a demand draft of Rs.
2,18,945/- drawn on State Bank of Hyderabad, Khultabad was given to proprietor of Nath Automobiles. He did not receive delivery of tractor. He frequently inquired with proprietor - Ramnivas Bhandari, but was bluffed. The area Manager of M&MC Ltd. was contacted, but he was informed that he should contact proprietor of Nath Automobiles because it was responsibility of the latter to supply the tractor.
He noticed that Rmnivas Bhandari had closed business of Nath Automobiles. He felt cheated and, therefore, lodged the first information report. Similarly, customer Vishwanath Sapkal lodged first information report, vide Crime No. I-2218/1997, alleging that a demand draft of Rs. 2,89,245/- for purchasing a tractor and trolley was handed over by him to proprietor of Nath Automobiles. The proprietor -
Ramnivas Bhandari accepted the demand draft and assured to provide the tractor. Though he several times contacted the proprietor, yet, could not get the tractor vehicle. The proprietor informed him subsequently that the tractor meant to be delivered to him was given to another agriculturist. He inquired with the Sales Officer and the Regional Manager of M&MC Ltd. He was informed that the demand draft sent ::: Downloaded on - 09/06/2013 13:53:02 ::: (11) by him was not received by the Company. Consequently, he lodged the first information report.
8. Petitioner Ramnivas seeks to challenge the first information reports lodged by customers against him pertaining to non-delivery of the tractors. He alleges that the first information report (Crime No. 196/1997) is lodged against him, though he did not induce complainant Arvind Araddhye to deliver demand draft for Rs. 2,18,945/-. He alleges that he was at the receiving end because the drafts received by him were forwarded to M&MC Ltd., yet, he did not receive the tractor vehicle for effecting its delivery to customer Arvind Araddhye. Similarly, he alleges that Crime No. 31/1997 registered on basis of complaint lodged by customer Yunus Kisanchandra Ahuja at Tofkhana Police Station, Ahmednagar, does not make out any offence against him because he did not receive any demand draft from the said customer.
9. Briefly stated, it is the case of M&MC Ltd and others that Ramnivas Bhandari, proprietor of Nath Automobiles was not authorized to accept the orders for tractors after termination of dealership agreement vide letter dated 31-07-1996. There was no business relationship between them. Therefore, Ramnivas Bhandari had no authority to accept the demand drafts and cheques for M&MC Ltd. The dealership agreement ::: Downloaded on - 09/06/2013 13:53:02 ::: (12) was not revived due to his failure to comply with the conditions and, particularly, since he never furnished Letter of Credit for Rs. 20 lacs. There were several complaints received by M&MC Ltd. about malpractices adopted by him in his conduct of the business. He filed Suit (R.C.S. No. 1405/1996) for injunction with a view to pressurize M&MC Ltd. He also filed yet another Suit (R.C.S. No. 44/1997) for restraining M&MC Ltd. from appointing any other dealer for Aurangabad district and for mandatory injunction to continue him as dealer. He could not get success.
So, he filed false and frivolous report with the police, but the police did not find any substance in his complaint. He thereafter instituted the private complaint case without any substantial reason. The private complaint case (R.C.C. No. 104/1998) is outcome of malice and would amount to abuse of process of the Court. The stance of M&MC Ltd. and others is that the twelve (12) demand drafts shown in the private complaint case were never tendered by complainant - Ramnivas Bhandari and were, in fact, received from M/s Wasan Automobiles, under its covering letters. It is asserted that complainant -
Ramnivas Bhandari falsely alleged that he delivered the demand drafts to M&MC Ltd. It is further asserted that due investigation was conducted into the first information report lodged by complainant Ramnivas Bhandari and it was revealed that the demand drafts ::: Downloaded on - 09/06/2013 13:53:02 ::: (13) were actually sent by M/s Wasan Automobiles and the vehicles were delivered to Nath Automobiles which were given to the concerned customers. Thus, according to M&MC Ltd. and others, complainant Ramnivas Bhandari duped his customers and unnecessarily implicated them in a false private complaint case. Consequently, they urged to quash the said complaint case as well as the first information reports lodged by the customers.
10. Mr. Shirish Gupte, learned Senior Counsel, appearing for M&MC Ltd and others, would submit that the record clearly goes to pin-point mischief committed by ig complainant Ramnivas Bhandari, the ex-dealer of M&MC Ltd. He would submit that there was no privity of contract between the customers who had placed orders with the dealer and M&MC Ltd. For, their internal transactions were on principal to principal basis. He would point out from the recitals of the complaint that Nath Automobiles was not agent of M&MC Ltd. and all their transactions were on cash payment basis. He would also point out that dealership of Ramnivas Bhandari was duly terminated as per letter dated 31-07-1996 due to his misconduct in the dealership business. He contended that the private complaint case instituted by the dealer -
Ramnivas Bhandari - is no short of abuse of process of the Court. He would submit that no offence is made out from the averments made in the complaint. He ::: Downloaded on - 09/06/2013 13:53:02 ::: (14) would further submit that the learned Magistrate ought not to have issued the process without proper verification of the fact situation pertaining to sending of the twelve (12) demand drafts by the dealer
- Ramnivas Bhandari. Per contra, Mr. S.M. Godsay, learned counsel, appearing for dealer - respondent No. 3 would submit that the orders were accepted by the dealer while his application for continuation of the dealership was pending and, therefore, it was duty of M&MC Ltd. to provide the vehicles as per the demand drafts forwarded to it. He would submit that the averments in the private complaint case may be proved during the trial, but the same cannot be discarded at the inception. He argued that Ramnivas Bhandari was duped by M&MC Ltd. in connivance with M/s Wasan Automobiles and, therefore, issuance of the process in the private complaint case is well justified.
11. What transpires from the record is that there was complaint about malpractices adopted by the dealer
- Ramnivas Bhandari in his business of dealership.
His dealership agreement was terminated by letter dated 31-07-1997. It is conspicuous that there was no direct business agreement between the customers and M&MC Ltd. I mean to say, there was no privity of contract between M&MC Ltd. and the customers. The practice was that Ramnivas Bhandari used to accept orders from the customers as authorized dealer and ::: Downloaded on - 09/06/2013 13:53:02 ::: (15) used to forward such orders to M&MC Ltd., with the payments. The latter used to then supply the tractors and trolleys as per the demand on receipt of entire consideration amount. The dealer only used to get commission. The dealer vaguely alleged that he sent the twelve (12) demand drafts for Rs. 22,34,256/-, alongwith the details of required tractor vehicles to M&MC Ltd. He did not give details of such payments alongwith details of forwarding letters, names of customers for whom the payments were made and acknowledgement received from M&MC Ltd. in the context of each of such payment. No receipt of such payment is produced on record.
12. The averments in the private complaint case would show that since 1991 till March, 1996, the business transactions were properly and smoothly conducted. Obviously, it goes without saying that there was absolutely no inducement held out by M&MC Ltd. and others with dishonest intention to defraud the dealer - Ramnivas Bhandari after April, 1996 onwards to make the payments. Nor it can be said that the latter entrusted such amount with M&MC Ltd. of which criminal breach of trust was committed. The documents placed on record would show that M&MC Ltd.
received letters from M/s Wasan Automobiles alongwith the relevant demand drafts shown in the complaint application.
::: Downloaded on - 09/06/2013 13:53:02 ::: (16)13. The record would show, including the tenor of first information report (Crime No. I-218/1997) lodged by one of the customers, namely, Vishwanath Bala Sapkal that the demand drafts were forwarded to M&MC Ltd. by M/s Wasan Automobiles. It is explicit from the record that the dealer - Ramnivas Bhandari allegedly indulged in malpractices in the conduct of his business. He accepted demand drafts from his customers. He was not authorized to deal in the business after termination of the dealership agreement. He had managed to take help of a broker by name Suwalal Chhallani. He gave the demand drafts of his customers to said Suwalal Challani (broker). The latter submitted those demand drafts to M/s Wasan Automobiles. A copy of letter (Annex-E) dated 21st May, 1997 would show that details of payments obtained from the broker were submitted by M/s Wasan Automobiles to M&MC Ltd. Thus, it prima facie seems that the tractors delivered to M/s Wasan Automobiles were given to the said broker who in his turn, sold them to third parties with connivance of the ex-dealer
- Ramnivas Bhandari. It appears that police investigation was carried out in the context of first information lodged by Ramnivas Bhandari against M&MC Ltd. and others. It appears further that there was no privity of contracts as such between the customers who are agriculturists but ultimately six (6) of them ::: Downloaded on - 09/06/2013 13:53:02 ::: (17) were provided with the tractors by the M&MC Ltd. on humanitarian ground. An affidavit is filed by Ravi Mathur, an officer of M&MC Ltd. in this behalf.
14. Coming to the averments in the complaint of Ramnivas Bhandari, it need not be reiterated that except vague statement that the twelve (12) demand drafts were forwarded by him to M&MC Ltd., there is nothing to show that actually, he made such payments.
Indeed, after 31st July, 1996, he had no legal authority to work as dealer. Assuming that he was hoping to get continuation of dealership, then also it does not stand to reason that he would forward the demand drafts without maintaining proper office record, obtaining of acknowledgement and receipts for such payments. It is pertinent to note that in his Suits, which were filed in the Court of learned Civil Judge (S.D.), Aurangabad, he never asserted that he had forwarded the demand drafts worth Rs. 22,34,256/-
to M&MC Ltd. and, yet, had not received the vehicles.
It is further worthy to be noted that his letter dated 01-10-1996 (P-165) also does not show the payments which were made before issuance of the said letter.
The averments in para 3 of the complaint case would show that atleast five (5) such demand drafts were issued prior to 01-10-2006. Had he been deprived of the delivery of tractors pertaining to such five (5) demand drafts, then he would have mentioned such a ::: Downloaded on - 09/06/2013 13:53:02 ::: (18) fact in his letter regarding fresh proposal put forth by him. On the other hand, he assured that the delivery of tractors would be cleared regarding the orders received uptill 30th September, 1996. He further assured that there will be no complaint from the customers regarding delivery and payment in case the proposal for dealership is accepted by M&MC Ltd.
15. There appears good deal of substance in the contention of Mr. Gupte that the ex-dealer instituted the private complaint case by way of pressure tactics when he could not get any relief in his Suits. There is no averment ig in the complaint that any false representation was made to the complainant - Ramnivas Bhandari on the basis of which he was induced to part with alleged twelve (12) demand drafts. The provisions of Section 409 are also not attracted in as much as M&MC Ltd. is neither a public servant,nor a banker or broker or agent. The said Company could not be termed as agent vis-a-vis complainant - Ramnivas Bhandari. Obviously, there is no reason to infer that criminal breach of trust was committed in respect of the amounts sent under the twelve (12) demand drafts even if it is to be assumed that such averments represent a disputed question of fact. There is no tangible evidence to infer commission of any forgery or fabrication of any document by M&MC Ltd. and others. Therefore, the criminal complaint for ::: Downloaded on - 09/06/2013 13:53:02 ::: (19) offences punishable under section 465, 467, 468 and 471 of the I.P. Code is without foundation. Under these circumstances, the private complaint application of Ramnivas Bhandari is an action which amounts to abuse of process of the Court.
16. The learned Senior Counsel seeks to rely on "Hridaya Hridaya Ranjan Prasad Verma and others vs. State of Bihar and another" (2000) 4 Supreme Court Cases 168.
The Apex Court held that where allegations in the complaint read as a whole did not indicate, expressly or impliedly, any intentional deception on the part of the appellants ig right from the beginning of the transaction, continuing the criminal proceedings against the appellants would amount to an abuse of process of the Court. The exercise of powers under section 482 of the Criminal Procedure Code in such case was held proper. It was held that the categories of cases enumerated in "State State of Haryana v. Bhajan Lal" 1992 Supp (1) SCC 335, 335 were not exhaustive.
Reliance is also placed on "Uma Uma Shankar Gopalika vs. State of Bihar and another" (2005) 10 Supreme Court Cases 336. 336 The Apex Court held that where the complaint did not disclose any offence either under section 420 or 120-B of the I.P. Code and that the averments showed existence of only a civil dispute, allowing of investigation to continue would amount to abuse of process of the Court. Further reliance is ::: Downloaded on - 09/06/2013 13:53:02 ::: (20) placed on "Ashok Ashok Chaturvedi and others vs. Shitul H. Chanchani and another" (1998) 7 Supreme Court Cases 698,
698 in which similar view is expressed.
17. In "Pepsi Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others" (1998) 5 Supreme Court Cases 749, 749 the Apex Court held that power of the Court to discharge the accused at the stage of framing of charge or existence of remedy of appeal and revision would not create a bar to invoke the jurisdiction of the High Court under Article 227 of the Constitution or section 482 of the Criminal Procedure Code. It is further held that while summoning an accused, the Magistrate ought to apply judicial mind to the facts of the case and law applicable thereto. It is observed :
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint ::: Downloaded on - 09/06/2013 13:53:02 ::: (21) and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise ig and then examine if any offence is prima facie committed by all or any of the accused."
18. The learned advocate for the applicant, seeks to rely on "Alpic Alpic Finance Ltd. vs. P. Sadasivan and another" (2001) 3 Supreme Court Cases 513, 513 wherein the Apex Court observed that merely because remedy by way of civil suit is available, would not be an impediment in maintaining criminal complaint, yet, such remedy would be available provided the complaint discloses the ingredients of the offences alleged. It was held that the facts in the given case did not show element of deception or fraud or dishonest inducement. Hence, the complaint was held liable to be quashed.
::: Downloaded on - 09/06/2013 13:53:02 ::: (22)19. In "B.S. B.S. Joshi and others vs. State of Haryana and another" (2003) 4 Supreme Court Cases 675, 675 the Apex Court considered the scope of section 482 of the Criminal Procedure Code. It has been held that the categories of cases in which such power can be exercised are not restricted to those referred to in "Bhajan Bhajan Lal's"
Lal case (State State of Haryana v. Bhajan Lal) Lal 1992 Supp (1) SCC 335. 335 In "Zandu Zandu Pharmaceutical Works Ltd.and others v. Mohd. Sharaful Haque and another" (2005) 1 Supreme Court Cases 122, 122 the Apex Court held that no hard and fast rule can be laid down for exercise of the extraordinary jurisdiction enumerated in section 482 ig of the Criminal Procedure Code. In "Ramesh Ramesh and others v. State of T.N." (2005) 3 Supreme Court Cases 507, 507 the Apex Court considered the scope of section 482 of the Criminal Procedure Code in the
context of the facts of the said case.
20. Mr. Godsay, learned Counsel, referred to "Pratibha Pratibha vs. Rameshwari Devi and others" 2007 DGLS (Cri.) Soft 28, "Renu Kumari vs. Sanjay Kumar and others" 2008 DGLS (Soft) 288, "Suryalakshmi Cotton Mills Ltd. vs. Rajvir Industries Ltd. & others"
2008 DGLS (Soft) 31 and "State of Orissa and another vs. Saroj Kumar Sahoo" 2005 DGLS (Cri.) Soft 75. In "Suryalakshmi Suryalakshmi Cotton Mills Ltd. vs. Rajvir Industries Ltd. & others"
others (supra), the Apex Court
held that ordinarily, a defence though, a plausible
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(23)
one, should not be considered while deciding the
application under section 482 of the Criminal
Procedure Code. It is further observed that the High
Court should not enter in to disputed questions of
fact. At the same time, the Apex Court held that the
documents of unimpeachable character can be considered to find out whether continuance of the criminal proceedings would amount to an abuse of process of the Court or that the complaint is merely filed to harass the accused. It is observed :
"Ordinarily, a defence of an accused although appears igto be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are ::: Downloaded on - 09/06/2013 13:53:02 ::: (24) filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable."
21. It is ig not necessary to elaborately set out ratio of other case-law referred to by Mr. Godsay.
Suffice it to say that the criminal prosecution may be quashed when there is material on record to infer that continuation thereof would amount to abuse of process of the Court. It may be quashed when it is found that continuation thereof would result into undue harassment of the accused persons and cause miscarriage of justice. Considering the fact situation obtained in the matters under consideration, I am of the opinion that continuation of the private complaint case instituted by complainant Ramnivas Bhandari would amount to abuse of process of the Court. For, the averments in the complaint and the other unimpeachable documentary evidence would show that no offence is made out against M&MC Ltd. and ::: Downloaded on - 09/06/2013 13:53:02 ::: (25) others. So also, the continuation of first information reports (Crimes No. I-196/1997 and I-218/1997) against applicants Anand Mahindra and others would amount to abuse of process of the Court in as much as there was no privity of contract between the concerned complainants and M&MC Ltd. The application (Criminal Application No. 472/1999) is only to allow the production of certain documents, which needs to be allowed in the interest of justice.
In this view of the matter, all the above petitions in first group will have to be allowed.
22. Corollary ig of foregoing discussion is that the petitions in the second group, except Criminal Application No. 1700/1997, must fail. The first information reports lodged against ex-dealer Ramnivas Bhandari, by the customers, cannot be quashed. For, admittedly, he accepted demand drafts from them and failed to deliver the tractor vehicles as promised by him. Secondly, it appears that he gave the demand drafts in question to a broker, who, in turn, gave them to M/s Wasan Automobiles. There is prima facie evidence to infer financial misdeeds committed by the ex-dealer - Ramnivas Bhandari in this behalf.
Consequently, the petitions in the second group, except Criminal Application No. 1700/1997, will have to be dismissed.
::: Downloaded on - 09/06/2013 13:53:02 ::: (26)23. In the result, all the petitions in the first group (i.e. Criminal Writ Petition No. 108/1999, Criminal Application No. 472/1999, Criminal Application No. 2146/1997 and Criminal Application No. 2278/1997) are allowed. The private complaint case (R.C.C. No. 104/1998) and the first information reports (Crime No. I-196/1997 and I-218/1997) are quashed as against applicants. The petitions in the second group (i.e. Criminal Applications No. 1648/1998 and 1869/1997) are dismissed. However, Criminal Application No. 1700/1997 in the second group is allowed in terms of interim order rendered therein. The ig anticipatory bail granted therein is continued till filing of charge-sheet or final report as the case may be.
[ V.R. KINGAONKAR ] JUDGE NPJ/CRIWP108-99-GROUP ::: Downloaded on - 09/06/2013 13:53:02 :::