Bombay High Court
J.K. Basu, Sales Manager vs Mahesh Kumar S/O Bajranglal Agarwal ... on 21 April, 1987
Equivalent citations: 1988(2)BOMCR413
JUDGMENT M.S. Ratnaparkhi, J.
1. A private complaint was lodged by the complainant Maheshkumar against four accused including J.K. Basu, the present petitioner, before me. The first accused was M/s. Bharat Engineering Company at Aurangabad, which was represented by the three accused Inpindar Singh, R.K. Bhandari and R.S. Sharma. The offences alleged against them were punishable under section 417 and 420 read with section 34 and 109 of the Indian Penal Code. The complaint was filed on 15-11-86 before the Chief Judicial Magistrate, Yavatmal. It appears that the verification of the complainant was recorded on the same day by the learned Magistrate and by the order on 20th November, 1986, the learned Magistrate issued a process under sections 417 and 420 read with sections 109 and 34 of the Indian Penal Code against all the four accused. The petitioner J.K. Basu, who is described as a Sales Manager (Export) of the Hindustan Motors Limited, Calcutta has challenged that order before this Court. The inherent jurisdiction of this Court is sought to be invoked for quashing the proceedings against him.
2. A few are required to be stated so that the controversy can be appreciated in its true perspective. The Hindustan Motors Limited are the manufacturers of Ambassador Diesel Taxi Cars and they have their main office situated at 9/1, R.N. Mukherjee Road, Calcutta-700 001. Mr. J.K. Basu is said to be the Sales Manager (Exports) of that Company and he is stationed at Calcutta. The Hindustan Motors Limited have appointed dealers for the different Stated or Regions for sale of the Ambassador Cars, Bharat Engineering Company, which is located at Chikhalthan, Aurangabad is their dealer for the Marathwada Region of this State.
3. According to the complainant, he placed an order for two Ambassador Diesel Taxies with Bharat Engineering Company sometimes in May 1966. The order was registered by the said Bharat Engineering Company. The complainant was asked to pay advance of Rs. 20,000/- for the two taxies and the balance was directed to be paid against the delivery. It was also alleged that the Bharat Engineering Company undertook to supply these two taxies within 60 days from the receipt of the order, subject to the delays beyond their control. Accordingly the complainant deposited Rs. 20,000/- under Receipt No. 779 and at the same time he gave his choice regarding the colour and other description of the taxies. On or about 24th June 1986, Inpindar Singh the Managing Director of the Bharat Engineering Company Limited, Aurangabad informed the complainant that they have received the allocation of two diesel cars from the Principals M/s. Hindustan Motors Limited. He was directed to deposit Rs. 2,29,000/- by Bank Drafts of different denominations inclusive of the price of the cars, transportation charges etc. Accordingly the complainant obtained one draft of Rs. 1,83,000/- payable to the Hindustan Motor Limited, another Draft of Rs. 3,300/- in favour of one Mahomed Karimali (for transportation of the cars) and the third Draft of Rs. 42,700/- in favour of the Bharat Engineering Limited. These Drafts were obtained from Andhra Bank having its office at Yavatmal. These Drafts came to be deposited with the Bharat Engineering Company Limited Aurangabad on 9-7-1986. Three receipts came to be passed in his favour and they have been annexed as Annexures B-9 to B-11 with this petition.
4. Inspite of the payment of the whole amount, the cars were not supplied to him. He had a correspondence with the Bharat Engineering Company Limited extensively in July and August 1986. He also wrote to the Hindustan Motors Limited at Calcutta that inspite of the payment of the amount as directed by the Bharat Engineering Company Limited, he has not been given the delivery of the two cars inspite of the specific assurance in that behalf. He addressed a letter to Hindustan Motors Limited on 4-8-1986 informing them that he has deposited the whole amount at the instance of the dealers and inspite of that the cars were not supplied to him. He also saw the responsible officer of the Hindustan Motors Limited. He addressed a letter dated 26-8-1986 to the Hindustan Motors Limited that the dealer at Aurangabad was avoiding delivery inspite of the receipt of the full amount. He received in reply dated 26th August, 1986 from the Hindustan Motors Limited under the signature of the present petitioner J.K. Basu informing him that due to production constraints ; that they were not in position to meet with market demand ; that there was also a long pending list with the dealers at Aurangabad. Anyhow they undertook to talk to their dealers Bharat Engineering Company Limited, Aurangabad in the matter and the complainant was also asked to see the responsible officers of the said Company.
5. On this correspondence, the complainant came to the conclusion that inspite of the assurance given to him by the Bharat Engineering Company Limited, they are not going to supply the cars to him as agreed. It is his contention that the accused Nos. 1 to 4 have included him and thereby made him part with the valuable consideration of near about Rs. 3,00,000/-. This amount to cheating and, therefore, he has filed the present complaint before the Chief Judicial Magistrate, Yavatmal.
6. The learned Magistrate on recording the verification of the complainant and on hearing the Counsel of the both the parties came to the conclusion that a prima facie case of cheating was made out against the accused Nos. 1 to 4. He also came to the conclusion that accused No. 4 (present petitioner) abetted the commission of that office. Accordingly the process came to be issued against all the four accused.
7. As already pointed out this order of the learned Chief Judicial Magistrate is challenged before this Court. Initially the complainant was made respondent No. 1. The accused Nos. 2, 3 and 4 were made respondents Nos. 2, 4 and 5, where as the State of Maharashtra was made as respondent No. 6. However, after the presentation of this application, the names of the respondents Nos. 2 to 5 came to be deleted. Now the complainant and the State of Maharashtra are the only respondents.
8. Mr. Gaikwad, learned Advocate for the respondent No. 1 raised a preliminary objection to this application. It was urged that the application was one under section 482 of the Code of Criminal Procedure which speaks about the inherent powers of the Court. It was his contention that the order issuing process was challengeable otherwise under the provisions of the Code of Criminal Procedure. The remedies were available to the petitioner under section 397 of the Code of Criminal Procedure. But these remedies have not been resorted to. As such it was not proper for this Court to invoke the inherent jurisdiction particularly when the remedies available under Statute were not availed of by the party. It will be necessary to consider this argument on its merits. The arguments can be split up into two parts. It has to considered by this Court whether a party failing to pursue its remedy under the common law, can still approach this Court invoking its inherent jurisdiction. Though at one stage it was sought to be canvassed that there would be a lack of jurisdiction in entertaining this application, the ultimate agitation was regarding the propriety of exercise of jurisdiction in the peculiar circumstances. It is true that section 482 of the Code of Criminal Procedure speaks about the inherent powers of this Court to make such orders as may be necessary to give effect to any orders under the Code of Criminal Procedure or to prevent abuse of the process of any Court or otherwise to secure ends of justice. The very opening part of section 482 of the Code conveys that the inherent powers of this Court are not subject to any limitations. The argument that this Court cannot exercise these powers for want of jurisdiction is, therefore, unfounded. The ultimate point which this Court would have to decide is whether it would be proper in the given circumstances, to invoke the jurisdiction particularly when the party has not pursued its remedies available under the common law. Thus it would not be the want of jurisdiction in this Court that would be a subject-matter of scrutiny, but it would be the propriety of that action which will have to be decided.
9. The order which has been passed by the trial Court is obviously under section 204 of the Code of Criminal Procedure. It is admitted that the Magistrate was called upon to apply his mind to the facts of the case brought before him and to pass appropriate order. It was not much disputed at this stage that order would not be called as an interlocutory order as is meant by the term within the meaning of sub-section (2) of section 397 of the Code because it is this order which makes the accused to come before the Court and to withstand the ritual of trial. It is from this point of view that the order does not remain an interlocutory order and it is subjected to the scrutiny of this Court or by the Court of session acting within its revisional jurisdiction.
10. The point that has been urged by Mr. Gaikwad was that when the revisional jurisdiction has been created by the Criminal Procedure Code itself, it would have been proper for the petitioner to approach the revisional forum rather then rushing to this Court for invoking its inherent jurisdiction. I am told that the other three accused have challenged the same order before the Sessions Court at Yavatmal in the revision and that revision is pending before that Court. We are not much concerned with those proceedings. What we are concerned in the present case is whether this Court, inspite of the fact that the petitioner has not invoked the revisional jurisdiction of the competent Court and has rushed to this Court for exercise of inherent power, can exercise its powers. Reliance was placed upon the principles enunciated in Municipal Corporation of Delhi v. Ramkisan Rohatgi, 1983 Supreme Court Cases 115 where the Supreme Court had an occasion to examine the powers of the High Court under section 482 of the Code of Criminal Procedure. The following observations of the Supreme Court were pressed into service :
"It is well-settled that the inherent powers under section 482 of the present Code can be exercised only when no other remedy is available to the litigation and not where a specific remedy is provided by Statute. Further, the power being an extraordinary one it has to be exercised sparingly."
Following observations of Krishna Iyer, were quoted in the very case:
"Even so, a general principle pervades this branch of law when a specific provision is made : easy resort to Inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code."
(Emphasis underlined) The above quoted observation thus specifically shows that there is no want of jurisdiction when a party comes to this Court with a request to invoke its inherent power under section 482 of the Code of Criminal Procedure and that too without resorting to the remedies under the common law. The Court has to examine the case on its own merits and if on such examination it finds that there are compelling circumstances, then this Court would not hesitate to exercise its inherent powers also.
12. Four categories have been specified by the Supreme Court where this Court would be justified in exercising its inherent jurisdiction. Relying upon Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, 1976 Supp. S.C.R. 123 the Supreme Court observed :
"Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no pudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ;
(3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary been based either on no evidence or on material which are wholly irrelevant or inadmissible ; and (4) Where the complaint suffers from fundamental legal defects, such as , want of sanction, or absence of a complaint by legally competent authority and the like."
13. Reliance was also placed on Madhu Limaye v. State of Maharashtra, 1978 S.C.C. (Cri) 10 where the Supreme Court in para 10 observed :
"The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction."
Relying upon this observation, it was urged that the order passed by the trial Court does not suffer from either of these defects inasmuch as there is neither any illegality nor any vexatiouness nor does it suffer from want of jurisdiction.
14. What the above-mentioned observation shows is the normal course. Even those observations, as they stand in paragraph 10 of the Report, would uneqivocally show that each case has to be examined on its own merits and if the Court ultimately comes to the conclusion that it is a fit case where abuse of the process of law has to be stopped, then this Court would justifiably intervene.
15. Reliance was placed on Avadh Narain Lal v. State of U.P., 1986 Cri.L.J. 1233 where the Single Judge of the Allahabad High Court observed as follows :
The inherent power under section 482, Cri.P.C. being extraordinary and residuary power is not available in regard to matters which have been specifically provided for under other prouislonp of the Code....The High Court would not exercise its powers under section 482 where any party could have, but did not, avail of the remedy of revision under section 397."
My attention was also invited to Kurukshetra University v. State of Haryana, A.I.R. 197J S.C. 2229 where the Supreme Court observed :
"It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases."
The background on which these observations came to be made is also very interesting. The Kurushetra University had filed the report through its Warden before the Police regarding the incident alleged to have taken place on the night between 25th and 26th September, 1975 in one of the University Hostels. On the basis of this report, the police registered the case under sections 448 and 452 of the Indian Penal Code. Before the police could proceed with the investigation, the respondent approached the High Court invoking its inherent jurisdiction for quashing the very first information report. The High Court also, without notice to the other party, quashed the first information report lodged by the Kurushetra University. It is this order of the High Court which was challenged before the Supreme Court in the abovenoted ruling and the observations which are quoted above extensively came to be made in this case. The Supreme Court observed that when the police get information regarding the cognizable offence, it is not only their duty, but also an obligation created by the statute to proceed with the investigation and to come to the conclusion whether a case is made out so as to put the accused before the Court. This obligation cannot be cut short by the High Court in the manner in which it has been done. It is on this background that the observations came to be made.
16. On consideration of these, authorities, it is evident that inherent powers of this Court enumerated in section 482 of the Code are independent and they are not limited by any other provision of the Code. In appropriate cases and as a general rule, these powers have to be exercised very sparingly. The Supreme Court has also laid down some guidelines by specifying the four categories where this Court would be justified in exercising these powers. Enough it to say, that the consideration that the party has not resorted to the ordinary remedies under law, would not be so relevant so as to make this Court defunct. If the Court on the scrutiny of the circumstances comes to the conclusion that justice requires interference, if can do so irrespective of the fact whether the remedies of revision are resorted to by the party or not.
17. It would, therefore, not be open for the respondent to say that this Court cannot exercise its inherent powers. If this Court comes to the conclusion that the process of law is being abused, then it would not hesitate to exercise its inherent powers. In Shardaprasad Sinha v. State of Bihar, it was held by the Supreme Court that the High Court would be justified in quashing the order passed by the trial Court taking congnizance of the offence. If the allegations in the present complaint or charge-sheet as they stand, do not constitute any offence, such a case fails under the first category enumerated in Municipal Corporation of Delhi v. Ramkisan, 1983 S.C.Cri. 115.
18. I am not much impressed with the argument that because the petitioner has not resorted to the remedy of revision available under section 397 of the Code of Criminal Procedure, his remedy under section 482 of the Code is barred. The position of law is clear. If it is brought to the notice of the Court that the process of law is being abused, then this Court would not hesitate in exercising these powers, merely on the ground that the remedy of revision though available to the party has not been resorted to by him. The powers under section 482 of the Code are vast even to include the quashing of investigation, which is completely a province of the police. In State of West Bengal v. Swapan Kumar Guha, , the Supreme Court observed that in appropriate cases even the investigation can be quashed, when it is brought to the notice of the Court that the first information report does not make out a cognizable offence.
19. This now brings me to the merits of the case. Having come to the conclusion that non-pursuance of the remedy of revision would not be a bar to exercise of inherent powers of this Court under section 482 of the Code of Criminal Procedure, what this Court has to examine is whether the circumstances are pressing enough for justification of the exercise of inherent powers. As already pointed out in Municipal Corporation Delhi's case (supra), if the material brought before the Court does not make out the necessary ingredients of the offence, this Court would be justified in quashing the whole proceedings. It is in the case of present petitioner that the material which is brought before the Court does not make out any case, as against him, and it is from this point of view that he wants to invoke the inherent jurisdiction of this Court in quashing the order issuing process against him.
20. Before proceeding with the merits, it will be proper at this stage to examine the positions of the different parties. The Bharat Engineering Company Ltd., is an independent entity and it deals in the business of selling the Ambassador Cars and Taxies manufactured by Messrs Hindustan Motors Limited. Hindustan Motors Limited is an independent Company dealing in the manufacture and sale of Ambassador Cars and diesel taxies. Messers Hindustan Motors Limited do not personally sell the taxies or cars in the open market. They have appointed dealers in different parts of the country. The cars are supplied to the dealers, who in turn sell these cars to different customers, who have booked their order with them. The relationship between the Hindustan Motors Limited and the Bharat Engineering Company, Aurangabad is governed by a separate contract entered into between these two parties and this contract is known as `Dealers Agreement'. The contract pre-supposes that they have independent existence and status. They have independent business. None interferes in the day to day business of either. The contract has been produced before me for my perusal and it lays down the procedure that the dealer has to follow in getting the cars from the principal manufacturers. Clauses 17 of this agreement specifically mentions that the dealer is not agent of the manufacturer. Dealers agreement can be terminated by either of the parties subject to the conditions mentioned in clause 24.
21. The general scheme of the dealers agreement shows that the dealer has to submit to the manufacturer his demand for the year by a particular date. Then he has to put up a monthly demand for the succeeding month to the manufacturer. The manufacturer on consideration of the demands of the different dealers, decides the quota that can be made available to each dealer. This quota is sent to the dealer and the dealer is expected to sell these cars. On this background, we have now to find out whether any case covered by section 417 and 420 of the Indian Penal Code is made out against the present petitioner. As already pointed out, the complainant put up his order with the Bharat Engineering Company Limited at Aurangabad sometime in May 1986. This order was registered by the Bharat Engineering Company and accordingly a letter was sent by them to the complainant on 28th May 1986. In pursuance of this letter, the complainant deposited the amount. An assurance was given in this letter by the Bharat Engineering Company that the two cars could be supplied within 60 days from the date of the order subject to the conditions beyond control. It is the case of the complainant that it was this assurance which made him collect the amount and deposit it with the Bharat Engineering Company. It is his contention that he took advance from the Andhra Bank at the exorbitant interest only with the expectation that he would get the cars within 2 months and his earnings would be started immediately on receipt of these two cars. We would accept the case of the complainant, as it stands at its face value. The question thus remains (1) who gave the assurance and (2) who made the complainant collect the amount and deposit it with the Bharat Engineering Company ? The answer to this question is only one and that is the Bharat Engineering Company, which is represented by accused Nos. 1,2 and 3. The present petitioner Mr. J.K. Basu has no concern with the Bharat Engineering Company. He is an employee of M/s Hindustan Motors Limited who are the main manufacturers of Ambassador Diesel Cars and sole manufacturing unit at Calcutta. He does not come into picture when the order was placed by the complainant with the Bharat Engineering Company. He does not come into picture when the Bharat Engineering Company gave an assurance to the complainant that the taxies or cars would be supplied within the 60 days. In view of this, it is well-nigh impossible to infer that at the initial stage or even at the latter stage, the present petitioner has any concern with this talk which according to the complainant, culminated into a criminal liability.
22. Extensive correspondence has been put before the Court of judging the culpability of the petitioner. In was extensively taken through the whole correspondence. To repeat it once again, the first letter is dated 28th May 1986. The correspondence between the parties continued in June and July. Reliance was placed on the letter addressed by Inpinder Singh dated 24th June 1986 to Mahesh Kumar (complainant) informing the latter that two diesel cars were allocated to them by their principles and hence he should deposit the requisite amount. By letter dated 6th July 1986, the complainant was asked to pay the amount immediately. He was also cautioned that the diesel cars are in short supply in the market and inspite of this condition, the Bharat Engineering Company assured to get the cars within a month's time. With this assurance the amount was deposited on 9-7-1986 under three different drafts. Then there was a correspondence between the complainant on the one hand and Bharat Engineering Company on the other. We need not go into all this correspondence. Enough to point out that for the first time the complainant addressed a letter to Hindustan Motors Limited on 4-8-1986. What has been written in this letter in equally important. The complainant has stated in the letter that he had paid Rs. 2,29,000/- on the assurance of Bharat Engineering Company and in spite of the payment through the Bank he has not received the delivery of the cars. He has asked Hindustan Motors Limited to intimate him the date of despatch of the two cars. It is clear that in this letter the complainant does not point out his accusing fingers towards Hindustan Motors Limited or the present petitioner, who is an employee of Hindustan Motors Limited.
23. Another letter addressed by the complainant to Hindustan Motors Limited is dated 18-8-1986 complaining that he was not so far received the two diesel Ambassador cars from the Dealer M/s Bharat Engineering Company inspite of full payment. He has also mentioned therein that he has sent Xerox copies of all the correspondence to Hindustan Motors Limited. He has again requested Hindustan Motors Limited to inform him the details of the despatch of the Ambassador cars.
24. Another letter addressed by him to Hindustan Motors is dated 24-8-1986 complaining that inspite of his two previous letters he has not received the delivery of the cars. He has also disclosed his apprehension that M/s. Bharat Engineering Works are intentionally avoiding the delivery of the cars to him. At the end of this letter he has asked Hindustan Motors Limited to use their good offices with the Bharat Engineering Company and to ask them to deliver the two diesel Ambassador Cars immediately. Thus till 24-8-1986 the complainant has not pointed out his accusing fingers towards Hindustan Motors Limited. Two days thereafter another letter is addressed by the complainant to Hindustan Motors Limited and a similar request is made to the latter to use its good offices and to persuade the Bharat Engineering Works to give the delivery of two diesel Ambassador Cars. Even on this date, there is no accusation made against either Hindustan Motors Limited or against the petitioner.
25. Then comes the letter addressed by the present petitioner posing himself as a Sales Manager (Exports). This letter is dated 26th August 1986. It makes reference to the letter dated 4-8-1986 addressed by the complainant to Hindustan Motors Limited. It would be proper at this stage to reproduce this letter as it very short:
"Kindly that note that owing to some production constraints we are not in a position to meet with our market demand. On enquiring from our Dealer we came to know that there is a long pending list for Ambassador Diesel Car. As such we will appreciate if you are kind enough to bear with us till your turn matures.
However, we are referring the matter to our dealer M/s. Bharat Engineering Company, Aurangabad who would get in touch with you and apprise you of the latest position."
26 Another letter to which reference is made is dated 10th September 1986, which bears the signature of one Mr. P.T. Basu, Marketing Manager of the Hindustan Motors Limited. It makes a reference of the visit of the complainant to the office at Calcutta. There is nothing further in this letter. The last letter can be found at page 137 and it is in reply to the letter addressed by Mr. P.T. Basu, the Marketing Manager. On going through all this correspondence, there is no whisper that the present petitioner was in any way connected with the bargain that was struck in between the complainant on one hand and the Bharat Engineering Company Limited with its three representatives on the other. Thus as far as the main offence is concerned, it can be definitely said that there is no material on record which can disclose the culpability of the present petitioner.
27. Mr. Gaikwad, learned advocate for the respondent No. 1 urged before me that he is not accusing the present petitioner of the offence of actual cheating. His case, as far as the present petitioner is concerned is quite different. According to him, there has been a larger conspiracy and accused No. 4 (present petitioner) has played a very important role into this conspiracy so as to deprive the complainant of the Ambassador Diesel Care inspite of full payment. According to him, he is pointing out the accusing fingers towards the present petitioner not for an offence punishable under sections 417 and 420 I.P. Code simpliciter, but for an offence of abetment defined under section 107 of the Indian Penal Code. He urged before me that the so-called abatement was by conspiracy. He invited my attention to section 107 of the Indian Penal Code which describes the term `abetment'. Section 107 of the Indian Penal Code reads as follows :
"107. A person abets the doing of a thing, who First-Instigate any person to do that thing ; or Secondly Engages with one or more other person or persons in any conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing ; or Thirdly-Intentionally aids, by any act or illegal omission, the doing of that thing."
The Explanation is not relevant for the present purpose.
28. Thus according to Mr. Gaikwad his case, as far as the present petitioner is concerned, falls within the second clause of section 107 of the Indian Penal Code. The main ingredients of conspiracy is the combination of two or more person with a common design of doing a specific thing. As is well known the act contemplated by the second clause of section 107 I.P.C. Code is not a substantive offence in itself. It only speaks of on abetment to the substantive offence which is committed subsequently. The abetment, therefore, proceeds and the offence is committed thereafter. Thus what the complainant was expected to show prima facie was that there was a meeting of mind between the different persons and as a result of that meeting of minds the further act of cheating was committed.
29. Looking from this angle, there is nothing in the complaint and also in the verification to show that the present petitioner came into picture any time before the August 1986. The gist of the offence is the inducement given to the complainant by the accused Nos. 1 to 3 to deposit the money. This inducement was given in June 1986 ; and falling prey to this inducement, it is the case of the complainant, that he actually deposited the amount on 9-7-1986, thus depriving the complainant of the valuable amount which is said to be the soul of this cheating. The offence has been complete on 9-7-1986. We have to see in these circumstances whether the present petitioner was anyway in the picture before the amount was deposited. I have already adverted to the evidence and to the material including the correspondence between the parties at length in the preceding paragraphs. Nowhere in the correspondence do we find the reference to Hindustan Motors till the end of July 1986. It is only on 4-8-1986 that the petitioner addressed a letter bringing to the notice of the Hindustan Motors Limited, Calcutta that their dealer at Aurangabad has made him part with a valuable consideration on the inducement that the two taxies will be supplied within 60 days. His endeavour was to persuade Hindustan Motors Limited to use their good offices. If it is so, can it be said that this amounts to an abetment ? In fact nowhere throughout the length and breadth of the complaint do we find any mention regarding the culpability of the petitioner. In the complaint it is mentioned that the accused No. 4, present petitioner, is the Sales Manager of Hindustan Motors Limited and he controls the sale of the cars. There is a stray sentence in the second paragraph that all accused in conspiracy with each other have deceived the complainant and made him part with a valuable consideration.
30. Reference has been made to the letter dated 26-8-1986 sent by the Hindustan Motors to the complainant where they have brought to the notice of the complainant that due to the production constraints they have not been able to satisfy the demand in toto. There are some misstatements in the complaint to the effect that the complainant's order was registered with Hindustan Motors. In fact, I have already pointed out that Hindustan Motors does not sell the cars individually in the open market. They supply the cars to their dealers according to the quota available. It is the dealers who sell the cars in their respective regions. What they do, according to the dealers contract, is to supply the particular number of cars to the dealers and it is left to the dealers to dispose of these cars according to their procedure. It is thus not correct to say that Hindustan Motors despatched two cars for delivery to the complainant in July or August 1986. They only sent two cars towards the quota of the Bharat Engineering Works for that particular month and nothing else. It was the Bharat Engineering Works who were to distribute these cars to their customers according to their turn.
31. It is in these circumstances that we have to consider whether any material for establishing the conspiracy, at least prima facie, has been placed before the Court. Mr. Manohar urged before me that there is nothing on record to establish the dishonest intention of the accused, and reliance was placed on Mahadeo Prasad v. State of West Bengal, 1954 Cri.L.J.. 1806; State of Kerala v. A.P. Pillai, ; Hari Prasad Chamaria v. Bishun Kumar Surekha, 1973 S.C. Cases. Criminal 1082 and N. Vaghul v. State of Maharashtra, . In fact it is not very relevant at this stage to decide whether there was any intention. This is a stage where the Court has to satisfy prima facie whether is any material justifying the Court to take cognizance of the matter. It is from this point of view that the material has to be examined. I have nothing to say as far as the accused Nos. 1 to 3 are concerned. They have already pursued their remedies before the Sessions Court at Yavatmal and the Sessions Judge will decide the matter according to law. I have to consider only the case of the present petitioner (original accused No. 4). The sum and substance of the allegations against him are that he has been an abetter by conspiracy. There is nothing on record to disclose any conspiracy. Mr. Gaikwad, learned advocate for the petitioner, strenuously urged before me that there should not be any tangible evidence of conspiracy. Neither this Court nor the trial Court ever asked the complainant to produce before the Court any tangible evidence establishing conspiracy. What was expected was to place some material before the Court which could reasonably lead to the inference that there was an occasion of meeting of the minds and this meeting of mind between the four accused resulted in the deprivation as alleged by the complainant. It is true that Mr. Gaikwad urged before me that conspiracy is always the matter of inference. But one cannot forget that the inferences are to be drawn from the material which is brought before the Court and not from pure imagination either of the complainant or of the Court. If examined from this angle, there is nothing on record which can justify the inference that accused Nos. 1 to 4 had met or that there was any occasion for meeting of the minds which created a background and in pursuance of this background the offence was committed. When the complainant wants the Court to infer conspiracy, he has to bring at least that much material before the Court which can justify this inference.
32. It is interesting to note that the learned Chief Judicial Magistrate jumped upon the inference of conspiracy, only from the letter dated 26-8-1986. It is really difficult to infer the conspiracy on the basis of this letter because this letter does not throw any light on the complicity either of the present petitioner or of Hindustan Motors Limited.
33. Disagreeing with the learned Chief Judicial Magistrate, I hold that there is absolutely no material justifying the inference that there was a conspiracy and the accused No. 3 and the petitioner-accused No. 4 were the participants in this conspiracy or that it was a part of that conspiracy.
34. This is thus a case where there is absolutely no material to connect the present petitioner. It is at this stage and on this background that we have to consider whether the order issuing process against the accused No. 4 is justified or not. It is under these circumstances that this Court has to consider whether it should exercise its inherent powers. The trial Court, without any material implicating the petitioner, issued a process against him and asked him to attend the Court. He is a resident of Calcutta. The trial is proceeding at Yavatmal, which is thousands of kilometres away. The accused will be required to attend each material hearing. Looking to the pace at which matters are disposed of, the case would take at least a few years. We have to consider in these circumstances whether a person from Calcutta being forced to attend the Court at Yavatmal for years would amount to abuse of the process of law, particularly when no prima facie material is brought against him.
35. I have already discussed that this Court is a repository of inherent jurisdiction and the inherent jurisdiction is not subject to limitations. Legal mandate lays down that inherent jurisdiction has to be used or exercised by the Court for achieving the purposes enumerated in section 482 of the Code. Preventing the abuse of the legal process is one of the purposes permitted by that section. Whether the petitioner has pursued his normal remedies under law or he has failed to pursue those normal remedies under law, will not be a bar for this Court in exercising its inherent powers if this Court comes to a definite conclusion that the process of law is being abused. To revert back to Municipal Corporation of Delhi v. Ram Kishan Rohatgi, 1983 S.C.C. (Criminal) 115 this Court would be justified in exercising its inherent powers in case it comes to the conclusion that the process has been issued, though there was absolutely no material justifying the same. Here is a case where there is absolutely no material as far as the present petitioner is concerned. If this process is continued unabated, the petitioner will have to attend the Court at Yavatmal, thousands of kilometres away from his office. This according to me is the abuse of the process of law particularly when there was no justification for issuing the process.
36. In my opinion, therefore, the trial Court was not at all justified in issuing the process against the present petitioner. This Court would be justified in exercising its inherent powers in quashing that process.
37. The application is, therefore, allowed. The process issued against the present petitioner is hereby quashed. Rule is made absolute in terms above.