Gujarat High Court
Nareshkumar Shivandas Bhagwani vs The State Of Gujarat &
Author: R.D.Kothari
Bench: R.D.Kothari
NARESHKUMAR SHIVANDAS BHAGWANI....Applicant(s)V/STHE STATE OF GUJARAT R/CR.MA/4384/2007 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 4384 of 2007 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ NARESHKUMAR SHIVANDAS BHAGWANI....Applicant(s) Versus THE STATE OF GUJARAT &
1....Respondent(s) ================================================================ Appearance:
MR MA KHARADI, ADVOCATE for the Applicant(s) No. 1 MR NIRAL R MEHTA, ADVOCATE for the Respondent(s) No. 2 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE R.D.KOTHARI Date : /03/2013 CAV JUDGEMNT The
applicant is original accused, he is said to be car dealer. An agreement said to have been entered into on 21/02/2006 between applicant/accused and the respondent no. 1. The agreement was for purchase of Maruti Esteem Car. The price agreed was Rs. One lakh fifteen thousand. The complainant had paid to Rs.1 lakh and the applicant /accused had given a delivery of the said car. Rs.15,000/- (Fifteen Thousand) was to be paid at the time of transferring of name of the respondent in the R.C. Book.
2. It is the say of the respondent no. 1 that he had waited for over 5 months however applicant/accused did not responded positively. Hence, the respondent no. 1 had given a notice on 13/07/2006 through his advocate. Thereafter complaint was filed before JMFC Court, Modasa, Court had sent the complaint for police inquiry and thereafter process was issued against the applicant/accused. The applicant seeks to quash the process under Section 482 of the Cr.P.C.
3. At the time of hearing, learned advocate for applicant Mr. A..M. Kharadi after briefly referring the facts of the case, has submitted that no offence is made out under Section 406 or 420 of IPC. It was submitted that ingredients of the said provisions are not even remotely attracted. It was submitted that there was no intention to cheat on the part of the applicant. Further it was pointed out that transaction had taken place at Godhara, therefore, if, at all criminal proceeding is maintainable then the same ought to have been initiated before the appropriate court i.e. not Modasa, but at Godhara Court. The learned advocate has drawn attention to (All Cargo Movers India Pvt. Ltd. Vs. Dhanesh Badarmal Case ) 2007(14) SCC 776 and V.P. Srivastava Vs. India Expulsive Ltd. 2010(10) SCC
361.
4. On the other hand, learned advocate for the respondent no. 1 has submitted that the applicant had cheated the respondent inasmuch as at the time of entering into agreement, assurance was given about expeditious transferring of the vehicle in the name of respondent no. 1. However, after the agreement, despite the repeated requests and reminders, the applicant had not cared to take appropriate step for transferring the name in the R.C. Book. Learned advocate has drawn attention to 2002(3) GLR 2579, 1986 (6) GLH 364 and 2006(2) GLH 753.
5. It may be stated that the said Maruti Esteem Car originally belonged to one of Mrs. Kusum Dalip Rajput, she had taken loan from ICICI Bank. This car was hypothicated before the said bank and later on she defaulted in making payment to the bank. Consequently, the bank had placed the car in auction, via Bazzee.com. One Malik A. Shete had purchased the car, the present transaction in question had taken place, as the said Malik agreed to re-sale the car.
It would not be out of place to mention that the matter was partly re-heard, mainly to see that party may arrived at settlement. Learned advocate for the parties have submitted that at the time of admission of application, attempt was made to settle the matter, but, it could not be settled, even at the pursuance of the Court. The learned advocate for applicant has stated that now for registering the car before the RTO office, the car is required to be brought before concerned RTO office and for that co-operation of the complainant is required, while, learned advocate for complainant has stated that because of lapse of such a long time his client is not interested in carrying out the formalities, now, at this distance of time. It is difficult to guess which party is to blamed. Be that as it may, I may consider the case of only on merits.
7. In V.P. Srivastava s case (supra), complaint was filed for offence under sections 406 and 420 of IPC. It was the say of the complainant that the accused had deliberately suppressed the fact that its Company is sick company and it is referred to BIFR. It was also alleged that accused company had fraudulently induced the complainant to pay Rs. 4.2 crore as advance and in return, the accused-company had not supplied the goods as agreed. On behalf of the accused, an application was filed to quash the complaint filed for the offence under Sections 406, 420 of IPC. It was held that mere mentioning of the words cheat and defraud in the complaint is not sufficient to infer that appellant had dishonest intention right at the beginning. It also held that mere failure to perform the promise by itself is not enough. On cheating, it had held thus:-
To hold a person guilty of cheating, it is necessary to show that at time of making promise he had fraudulent or dishonest intention to deceive or to induce person so deceived to do something which he would not otherwise do .
On criminal breach of trust, considering the case on hand, it had held :-
No evidence that appellants had dominion over any of properties of respondent, which they dishonestly converted to their own use .
In IOC vs. NEPC India case, 2006 (2) GLH 753, relied on by learned advocate for the respondent no. 2 Mr. Mehta,, IOC had initiated several civil proceeding to recover its dues. In all, dues were of over Rs. 13 Crore. Along-with this remedy, IOC has also initiated winding up proceeding and other cases, including filing of criminal case against the respondent. It would appear that pending these litigation the respondent had tried to remove the engines of the air craft which were hypothicated before IOC and that had led the IOC to file a criminal proceeding, the question considered by S.C. were - whether existence of civil remedy in respect of dispute, arising from breach of contract, bars remedy under criminal law ? And secondly, whether, the allegation in the complaint, if, accepted at the face value constitute and offence under Sections 405, 425, 415 etc of IPC. On the former question, it had agreed with the High Court and held that pendency of civil proceeding would not come in the way of initiation of criminal proceeding, on the second question considering the ingredients of Section 415 etc and facts of the case on hand, it had allowed the appellants appeal. It had ordered that criminal trial may proceed against the respondent before the JMFC Court.
9. In R.N. Popli case 2003(3) SCC 641 relying on Jasvantrai s case, AIR 1956 SCC 575 as to what constitute criminal breach of trust, it was laid down thus :-
To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one s own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him, that amounts to a criminal breach of trust as defined by Section 405 .
10.
Ingredients of cheating were laid down thus :-
Section 420 deals with cheating and dishonestly inducing delivery of property. The offence of cheating is made of two ingredients: deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the person deceived delivers to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating, it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself .
11. In the present case, admitted fact is receiving of Rs. One lakh by the applicant /accused and in the return the applicant has handed over the car to the respondent no. 1. The grievance of the respondent no. 1 is despite the repeated reminders the applicant has not taken care to take necessary steps to transfer the said car in his name. It may be recalled that written agreement was entered into on the date of transaction. Therein, the parties have agreed that remaining payment of Rs. 15,000/-(Fifteen Thousand) was to be made upon carrying out of NOC by the applicant. Thus, in the circumstances, it cannot be said that the applicant had intention to cheat or defraud at the time of entering into the agreement.
Since car is with complainant is admitted fact, the dispute is on account of delayed or non-carrying out formalities by the accused for NOC. In this connection it is say of complainant that accused has not disclosed, that he does not own the car.
12. Assuming for the moment that applicant had not disclosed at the relevant time, that the car was belonging to the 3rd party and not to him. What does it follow ? Is it possible to infer the case of cheating or breach of trust on account of this ? In the circumstances of the case, it can be said that alleged un-initiation or non-cooperation in transferring the car in the name of the complainant has no direct bearing, on the transfer of the car in the name of the complainant (NOC). In absence of any supporting material such as demanding of higher price by the original owner or owner developing unwillingness for selling the car or there is other such like reason it hardly matter so far as causing of delay in NOC is concerned - whether the car really belonged to the applicant or to 3rd party.
13. It cannot be denied that taking steps for transferring of the name in RTO within reasonable period is implied in the transaction. Parties are expected to do so. It is the say of the complainant that applicant has remained unmoved, so much so that complainant has given a notice through advocate for the same. The notice did not yielded any result. This notice is on record. It would appear that applicant has sent relevant papers of the car to the complainant through courier. The applicant says so in his notice.
14. It is difficult to guess that why required formalities were not carried out and why necessary steps were not taken for NOC or to be precise, why transferring car in the name of the complainant has not taken place. In this regard two points may be noted one, It was known to the complainant that the applicant is a car dealer. This knowledge of the complainant is not in dispute. So when a party is dealing through a car dealer, he is expected to have verified about the ownership of the car. It may be noted that it is his assertion that at the time of transaction, he had taken services of two mechanics. When the complainant is cautious enough to get approval and verification of the car he intends to purchase, by his mechanics, , it is difficult to believe that the matter that was of so much so primary and elementary nature i.e. who owns the car would have missed clarification between the parties at the relevant time. It is also relevant to note that complainant is a resident of Modasa, while the applicant is resident of different town and different district i.e. Godhara. In the circumstances, it is unlikely that the complainant would remain uninformed about fact that who owns car. It was submitted that, parties came into contact via one relative of the complainant namely Bharatbhai. . Purchase of car is not like purchase of vegetables or purchase of such like miscellaneous items. It is not possible to believe that the issue of ownership of car would have remained undiscussed at the time of transaction. So it is not possible to say that applicant has committed cheating or breach of trust . Secondly, the complainant says in his notice to the applicant that he had received the car papers just 10 days prior to the notice through courier, this fact of sending relevant papers to the complainant shows absence of malice or absence of want of bonafide of the nature on which the criminal action can be based.
15. In IOC case (supra), the accused had removed engine etc. from the hypothicated air craft during the pendency of litigation. Institution of criminal proceeding in the facts and circumstances of the case was held legal and proper. The circumstances of the present case are different, however, before drawing conclusion reference may be made to Ahmedabad Mill company Ltd. Case 5986 GLH 364 and Keki Patel vs. Dhanesh Badarmal s case 2002 (3) GLR 2579. In Keki Patel s case complainant was dealing with garments business complainant had sold some ready-made garments to one business firm at France through the accused. Delivery of the ready-made garments was to be made to the purchaser only after the necessary papers are released by the Bank which in turn would release the paper upon making of payment of consignment to the said bank, instead of that, goods were delivered to the purchaser prior the payment made by the purchaser, this had held the complainant to file the complaint before the City Civil Court, Ahmedabad. On behalf of the accused it was contended that purchaser is in different country i.e. in France and consignment was delivered to the accused at Mumbai and no part of transaction had taken place at Ahmedabad. Therefore, Court at Ahmedabad would not have jurisdiction. It may be bear in mind that, in that case earlier also the complainant had entered into export business through the present accused. In other words, the accused was conversant to the business practice, yet it delivered the goods to the purchaser prior to release of papers by the bank. Considering the facts of the case and the case law including Trisul Chemical Case 1999 (8) SCC 686 it had held that generally criminal proceeding cannot be quashed on the ground of territorial jurisdiction. It has also held that question of jurisdiction is a mixed question of the fact and law.
16. In the present case it is say of the applicant that transaction had taken place at Godhara, therefore, Modasa Court would have no jurisdiction. On the other hand, respondent/accused contents that Modasa Court has jurisdiction. Say of the complainant in his complaint gives impression that transaction may have taken place at Modasa. There is affidavit of one Bharatbhai on record, as referred above, the present transaction has taken place through him. He is a relative of complainant, he says in his affidavit that transaction has taken place at Godhara, thus, he does not support the say of the complainant. Relying on the affidavit of Bharatbhai prima-facie, it can be said that court of Godhara would have jurisdiction, however as the case on merits fails because essential ingredients for offence are not attracted. I am not considering question of jurisdiction.
17. In Ahmedabad Mill Company s case (supra) 1986 GLH 364 complaint was filed by labour officer against the manager of the company upon the closing down of the company. Complaint was filed under Industrial Dispute Act 1947, Payment of Gratuity Act and its rules etc..The complainant obtained sanction of the government. After obtaining sanction for prosecution three cases filed against the manager of the company etc. These cases sought to be quashed under Section 482 of Cr.P.C. Court had held that when the quashing of the prosecution has effect of frustrating the will of the people the same cannot be quashed. Further, it was found that there was contravention of the relevant provision of the Act and the rules and there is no abuse of the process of the Court, it held that at this stage, the evidence is not to be examined. Holding so, Court has rejected the plea of quashing of the complaint.
18. In that case exercise of power under Section 482 was refused as examination of evidence was required. Further, in that case, the complainant was a labour officer and complaint were lodged after obtaining sanction from the government. Complaints were filed for violation of provision of Industrial Dispute Act and Payment of Gratuity Act. In the present case considering the facts and circumstances and in view of above discussion, exercise of power under Section 482 is called for as essential ingredients of the offence for which the complaint is filed are not attracted. Therefore, continuation of the proceeding would be abuse of process of Court.
19. In view of above the application succeeds process issued by Modasa Court in Criminal Case No.9 of 2007 is hereby quashed. Rule is made absolute.
(R.D.KOTHARI, J.) manoj Page 17 of 17