Bombay High Court
Appollo Tyres Ltd., Represented By Its ... vs Mrs. Dr. Shashitai Bhagwan Ahire And ... on 30 April, 2008
Equivalent citations: 2008(110)BOM.L.R.1336
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
Page 1339
1. This is an application filed under Section 482 of the Code of Criminal Procedure.
2. Challenge herein is to order dated 15th January 2005 rendered by learned Additional Sessions Judge, Dhule in Criminal Revision Application No.205 of 2001. By the impugned order, learned Sessions Judge was pleased to recall process issued against original accused Nos.1 to 8, which was issued by learned Chief Judicial Magistrate, Dhule for offences punishable under Sections 403, 407, 409, 420 and 465 read with 120-B and 34 of the Indian Penal Code.
Page 1340
3. The applicant is private limited Company dealing in manufacturing of tyres. The applicant - Company has a sub-office at Dhule. The applicant deals in supply of motor vehicles tyres of different types through its office at Dhule.
4. Respondent Nos.1 to 3 are Chairman, Manager and Bank, respectively, dealing in Banking business at Nasik. They may be referred hereinafter, for sake of convenience, as the "Bankers".
5. Respondent No.5 is a transport agency of which respondent No.4 is Director and respondent No.6 is the Branch Manager. Respondent No.7 is also a transport agency of which respondent No.8 is the Branch Manager. They may be referred hereinafter as transport No.1 and transporter No.2, respectively, for the sake of convenience.
6. Respondent Nos.9 to 12 are the purchasers of tyres and run their business in the name and style as "Silver Tyre House". They are the original accused Nos.9 to 12. They will be referred hereinafter as "transporters".
7. The applicant filed a private complaint case (Criminal Case No.396 of 2000) in the Court of Chief Judicial Magistrate at Dhule against the respondent Nos.1 to 12 alleging that they misappropriated the tyres after preparing fabricated documents and committed offence of misappropriation and cheating. Substance of accusations is that the respondent Nos.9 to 12 used to purchase tyres from the applicant - Company. The business practice was that goods used to be sent through the transporters with instructions that the same would be delivered to the purchasers on furnishing the consignment documents endorsed by the Bank, which was to collect the payment of price. The purchasers used to deposit the price amount in the Bank towards payments of the bills. The applicant used to forward the original bills to the Bank for collection of the price amount. The Bank was bound to deliver the original consignment documents after making proper endorsement about the payment, to the purchasers. The purchasers used to submit such endorsed documents, including consignment note, to the concerned transporters. The goods used to be delivered to the purchasers by the transporters only on receipt of duly endorsed consignment notes/bills. The business practice, custom and usage provided for mutual obligations to first honour the "hundies" sent through Bank and only thereafter to obtain the delivery of goods.
8. According to the applicant, the purchasers placed an order for consignment of tyres, which was sent through the transporters No.1 and 2. The Bankers did not, however, ensure payment of the price before delivery of the consignment note and original documents to the purchasers. The purchasers obtained such consignment note and documents from the Bankers by practising fraud and in collusion with them. The purchasers thereafter produced the consignment note and other documents before the transporters No.1 and 2. The invoices, which were not duly endorsed by the Bank for receipt of the payment, were accepted by the transporter Nos.1 and 2 and delivery of the tyres was effected in favour of the purchasers. The applicant called upon the Bank to return all the concerned papers since the purchasers did not pay the price amount. The Bankers informed, however, that the documents were not available and copies of the Page 1341 consignment notes may be resubmitted for purpose of rebooking. The delivery of the goods was made somewhere in July 2002 and in spite of correspondence, neither the goods were returned nor the price was paid. The complainant, therefore, lodged complaint for offences of cheating, misappropriation, forgery etc. committed by the Bankers, both the transporters and the purchasers in collusion with each other.
9. The learned Chief Judicial Magistrate, Dhule issued process against all the abovenamed accused persons. The original accused No.4, who is Director of one of the transporter No.1, M/s Rahul Transport Pvt. Ltd. preferred criminal revision application No.205/2001 in the Court of Sessions at Dhule. By the impugned order, the learned Sessions Judge was pleased to allow the revision application and to recall process issued against the original accused Nos.1 to 8, i.e. the Bankers and the transporters.
10. Being aggrieved, the original complainant has preferred this application.
11. Mr. Deshmukh, learned Advocate for the applicant would submit that the business practices and usages are not properly appreciated by the learned Sessions Judge while recalling the process. He would submit that the revision application was preferred only by original accused No.4 - Rahul, yet the revisional Court recalled process of other accused persons too without any substantial reason. He argued that a chain is established to interlink the transactions regarding delivery of the goods without obtaining payment of the price. He argued that the grounds raised in the revision application preferred by accused No.4-Rahul were too sweeping and general in nature. Still, however, the learned Sessions Judge overreached and recalled the order of process against not only the transporter No.1 but against the transporter No.2 and the Bankers. He argued that the Bankers and the transporters have vital role in the business dealings. They delivered the documents and the goods to the purchasers by fraudulent means. The trust reposed by the complainant in the Bankers and the transporters is destroyed by their actions. Mr. Deshmukh would submit, therefore, that the process could not be recalled in the exercise of revisional jurisdiction and also argued that the revision application itself was not maintainable. As against this, Mr. Godhamgaonkar, holding brief for the Bankers, would submit that there was no privity of contract between the Bankers and the applicant. He would submit that there was no business practice established between the Bankers and the applicant. He pointed out that the consignment note was addressed to another Bank, namely, "Malegaon Merchants Bank at Malegaon". The present Bankers (respondent Nos.1 to 3) received the consignment note and other relevant documents from Malegaon Merchants Bank without any instruction to collect price of the goods before delivery of the consignment note etc. His further contention is that there was no privity of contract between the Bankers and the applicant and hence, they were not directly liable to answer the charges levelled against them. He would point out that Malegaon Merchants Bank is not joined in the array of accused. He argued that though revision application was preferred by transporter No.1, yet when the record was called by the learned Sessions Judge, then the process could be recalled against the other accused persons too. Mr.M.H.Patil, would submit that the process was rightly recalled because Page 1342 the transporters delivered the goods on receipt of the original consignment note and other documents, which was enrouted through the Bank. He would submit that there was no reason shown in the complaint why transporters are accused of offence of cheating or forgery of any document or misappropriation.
12. Before I proceed to consider the rival submissions, it may be made clear that though certain observations in case of Subramaniumsethu Raman v. Stat of Maharashtra and Anr. 2005 (1) Mah.L.J.626, go to show that the order of issuing process has to be challenged by filing an application under Section 482 of the Cr.P.C., yet there is no specific embargo put on exercise of revisional jurisdiction by the Court of Sessions. A Single Bench of this Court in Saket Gore and Ors. v. Aba Dhavalu Bagul and Anr. 2005 ALL MR (Cri) 2514, held that a revision application against order issuing process is maintainable. Nay, the learned Single Judge further observed in view of such efficacious remedy, process cannot be quashed in exercise of power under Section 482 of the Cr.P.C. The learned Single Judge duly considered the case of "Subramanium Sethu Raman v. .State of Maharashtra" (supra). The learned Single Judge took survey of catena of other decisions, including that of "Adalat Prasad v. Rooplal Jindal" 2004 Mh.L.J.274. The learned Single Judge held that the Supreme Court has not decided an issue whether a revision against order of issuing process is maintainable or not since such issue was not raised in case of Adalat Prasad. Once a co-ordinate Bench of this Court has taken a view that revision application against order of issuing process is maintainable, with respects, I find it difficult to deviate therefrom. Hence, the argument advanced on behalf of the applicant about maintainability of the revision application will have to be rejected.
13. Coming to the facts of the present case, it is important to note that there is absolutely no documentary evidence to show any "privity of contract" between the applicant and the Bankers. The consignment note was not directly sent to the Bankers by the applicant. There is no denial to the fact that the original consignment note and the invoices were sent to Malegaon Merchants Bank at Malegaon. It is the said Bank, which, in its turn, forwarded the said documents to the Bankers - respondent Nos.1 to 3. So, whatever folly is committed by the Bankers is in the context of business transactions of the Malegaon Merchants Bank. They have no direct business relationship with the applicant. The applicant gave no instructions to the respondent Nos.1 to 3 to ensure payment under the invoices before delivery of the consignment note and invoices to the purchasers. Obviously, the Bankers cannot be responsible for any wrong delivery or illegal delivery of the goods to the purchasers. The recalling of process against them is well justified.
14. As regards the legal position, Section 399 of the Cr.P.C. makes it clear that when record is called by the Sessions Judge himself, then he has the power to suo motu examine legality and propriety of the order issued by the Magistrate. The phraseology " the record of which has been called Page 1343 for by the record of which has been called for by the record of which has been called for by " himself", as used in Section 399 of the Cr.P.C. is not restricted only to those cases in which suo motu revision petition is entertained by the Court of Sessions. It would also cover the cases where, in context of any other proceedings, including the revision petition initiated by anyone of the accused of which the record is called, the power available under Section 399 of the Cr.P.C. may be exercised by the Court of Sessions. Therefore, it does not stand to reason that the impugned order could not have been passed only because the revision application was filed by accused No.4 - Rahul Mehta. Needless to say, such argument advanced on behalf of the applicant deserves to be rejected.
15. So far as the transporters are concerned, it appears from the verified statement of the complainant/applicant that business practice usages required them to deliver the goods to the purchasers only after obtaining the consignment note and invoices having appropriate endorsement of the Bank in respect of the payment. There was implied contract between the transporters and the consigner to deliver the goods as per the business practice, which is in the vogue. They could not have delivered the goods without receiving duly endorsed consignment note and other documents. They did not receive such duly endorsed invoices and the consignment note from the purchasers. Even so, the transporters delivered the goods to the purchasers. Thereby, they committed breach of the trust, which was reposed by the applicant. Whether transporters were having mens rea or they delivered the goods under bona fide belief of payment having been made by the purchasers is a question of fact, which would depend upon the evidence that may be tendered. The impugned order shows that this aspect is lost sight of by the learned Sessions Judge. The learned Sessions Judge gave clean chit to the transporters only because the purchasers produced lorry receipts and, therefore, the delivery was required to be given by the transporters. The learned Sessions Judge observed:
Once the lorry receipts were given to the respondent No.9 on their presentation when the respondent Nos.5 and 7 made the delivery of the consignment to the respondent No.9, I do not find that they have committed any offence .
16. The learned Sessions Judge did not, however, see that the applicant consistently relied upon existing business practices and usages. The transporters are not mere carriers of the goods. The liability of the carriers is also to follow instructions of the consigner for delivery of the goods. There is prima facie evidence on record to show that the transporters verified the original consignment notes and the invoices as regard proper endorsement of the Bank in respect of the payment of goods. The transporters cannot be absolved of their duty to deliver the goods only after due verification of the proper and authentic documents, including the payment endorsement of the Bank. This being the fact situation, the process issued by the learned Chief Judicial Magistrate could not have been quashed in respect of the transporters. The Sessions Court should be slow in interfering with the prosecutions filed before the Courts of Magistrates. It is only when the facts alleged do not constitute any offence, whatsoever, the order issuing process may be recalled. The process cannot be recalled when it would amount to Page 1344 stifling of the criminal prosecution at a premature stage. For, after leading evidence, opportunity to seek discharge is available to the accused. Considered from this point of view, the impugned order is quite unsustainable and improper to the extent of recalling the process issued against the transporters. It amounts to undue interference in the prosecution at premature stage and hence, the impugned order will have to be quashed.
17. For the reasons aforestated, the application is partly allowed. The impugned order is quashed only to the extent of recalling the process issued against the transporters, i.e. original accused Nos.4 to 8. The application is, however, dismissed to the extent of order recalling process against the Bankers, i.e. original accused Nos.1 to 3. The application is accordingly disposed of with no order as to costs.