Orissa High Court
Paragon Associates And Anr. vs Pasupati Feeds on 13 July, 2001
Equivalent citations: 2001CRILJ3737, 2002(I)OLR157
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. This application under Section 482, Cr. P.C. has been filed to quash the proceeding I.C.C. No. 28/98, pending in the Court of the learned J.M.F.C. (Rural), Cuttack.
2. Case of the complainant-opposite party is that it is a partnership firm manufacturing cattle feed at Village Kairapari under the Tangi Police Station and Prakash Kumar Rout is the Managing Partner of the firm. After obtaining loans from different financial institutions the firm decided to contact with the manufacture of Plant and Machinery for commissioning the Cattle Feed Plant. Accused-petitioner company which was also involved in manufacturing cattle feed plant was contacted by the complainant and the complainant was introduced to believe that the accused-petitioner firm is a pioneer organisation in India in manufacturing cattle feed pellet making plant. At the time of visit of the Managing Partner, the accused-petitioner also handed over quotation for supply of the plant and machinery. The Managing Partner of the complainant-firm after consultation with other partners decided to purchase plant and machinery from the accused-petitioner firm and placed order on 27.1.96 along with advance of Rs. 1,50,000/- by way of Demand Draft. As per quotation, the petitioner was to supply plant and machinery as well as erection and commission of the plant at the site of the complainant and hand over the fully operational manufacturing unit before receiving the full and final payment. Before receiving the first lot of machinery the complainant was made to believe that the plant and machinery will be despatched and sent two Demand Drafts for an amount of Rs. 1,32,000/- and another for Rs. 68,000/-. All the amount sent by Demand Drafts was received by the accused-petitioner. After payment of almost 50% of the amount, the complainant-opposite party waited for supply of plant and machinery which was to be delivered within two months after receipt of the advance, but the machineries were not supplied. Only on 26.9.96 the accused-petitioner firm despatched the first lot of machinery along with a bill of Rs. 4,65,000/- and the same was, received by the complainant in the first week of October, 1996. The complainant thereafter sent Rs. 2,50,000/- on 7.10.1996 for supply of the plant and machinery, but the same were not supplied. Only on 5.2.97 some more equipments was sent by the road which the complainant was duly received. Thereafter, the accused-petitioner did not take any steps for erection and commissioning of the machinery for a considerable length of time and after several correspondences one Mr. M.D. Jagtap was sent to make the plant operational: Mr. M.D. Jagtap tried his best but failed the plant operational and returned back without success.
Case of the complainant is that though he has paid 80% of the total amount, only part of the machineries were supplied and the responsibility of erection and commissioning of plant having not being done, a clear case of cheating is made out.
3. In the application filed before this Court under Section 482, Cr. P.C. it has not been disputed that the plant and machineries were supplied by the accused-petitioner and that they have received the amount by demand drafts. On the other hand, due to some difficulties the plant and machineries could not be supplied in time. Shri Sahu, learned counsel for the petitioner challenged the initiation of the complaint case only on one ground. According to him, since there was a contract between the two parties and it is alleged that there has been a breach of contract, remedy open for the complainant to is to go for a civil suit and filing of a criminal case amounts to gross abuse of process. The dispute being civil nature, complainant case is not maintainable.
4. Before entering into the question as to whether it is a case of breach of contract only or there is evidence of cheating, it is necessary to look into the allegations made in the complaint. From the facts alleged in the complaint, it is clear that as per the terms of the quotation, the accused petitioner was to supply machineries within two months from the date of receipt of advance. There is no dispute that the advance and subsequent payments were made by the complainant within time. There is also no dispute that even after receipt of the amount the accused-petitioner could not supply machineries in time. It further appears from the facts alleged in the complaint that though in the quotation the accused-petitioner had taken responsibility of erection and commissioning of the plant operational, steps were not taken in time and no one of the representative sent for making plant operational also failed. Specific allegation made in the complaint that the complainant was induced to believe that the accused-petitioner firm is pioneer organisation in India in manufacturing feed pellet making plant and that one Radha Raman Saha induced himself as Managing Partner of the firm whereas the accused-petitioner is a proprietory firm concern of Mr. Yogendra Singh R. Rathod. In view of such allegation, it cannot be said that element of cheating is lying in the complaint.
5. The Apex Court in the case of M/s. Medchl Chemical and Pharma Pvt. Ltd v. M/s. Biological E. Ltd. and Ors., reported in AIR 2000 S.C. 1869 has observed as follows :
"In the instant case the ingredients of the offences under Sections 415, 418 and 420 were not totally absent on the basis of the allegations in the complaint. However, whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact, they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in case like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred.
In the matter of exercise of High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial and in the event the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction."
This Court also following the aforesaid decision in a case reported in (2001) 20 OCR 741 refused to quash a proceeding under similar circumstance.
6. In view of the observations made by the Apex Court in the aforesaid case, I am of the view that whether or not allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the complainant. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact, they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence.
7. I therefore, declined to interfere with the continuance of the proceeding in exercise of inherent powers under Section 482 Cr. P.C. The Criminal Misc. Case is accordingly dismissed.