Delhi District Court
Jalan Trasolution India Ltd And Anr vs State And Anr on 20 January, 2024
IN THE COURT OF SH. NAVJEET BUDHIRAJA
ADDITIONAL SESSIONS JUDGE0, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Criminal Revision No. 125/2023
CNR No. DLST010034372023
1. Jalan Transolution (India) Ltd
(through it's director Manish Jalan)
2FCS38, Second Floor
Ansal Plaza Vaishali, Ghaziabad,
Uttar Pradesh Ghaziabad UP201010
2. Manish Jalan
S/o Sh. Madan Lal Jalan
R/o C68, Surya Nagar
Ghaziabad, UP201011
....Petitioners
Vs.
1. STATE (GOVT. OF NCT) OF DELHI
2. Apollo Supply Chain Pvt Ltd
Plot No.20, Sector 44
Gurgaon, Haryana122001
.... Respondents
Date of institution : 12.04.2023
Date of reserving the order : 20.12.2023
Date of pronouncement : 20.01.2024
JUDGMENT
Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2024.01.20 Cr. Revision No. 125/2023 Page no.1 of 33 12:10:35 +0530 This is a criminal revision under Section 397 and 399 of the Code of Criminal Procedure, 1973 (Cr.P.C) preferred by revisionist against impugned order dated 03.04.2023 passed by Ld. Chief Metropolitan Magistrate, South District, Saket Courts, New Delhi (Ld. CMM) in Criminal Complaint No. 1510/2022 in case titled as "Apollo Supply Chain Pvt Ltd Vs. M/s Jalan Transolution (India) Ltd and Ors." whereby Ld. CMM ordered the registration of first information report (FIR) against the revisionist and it's director and Ors.
2. The present revision petition has been predicated on the following submissions:
Revisionist no.1 is a company and is in the business of providing transport logistics solutions, revisionist no.2 is the authorized representative and director of the revisionist no.1 and respondent no.2 is a company and is in the business of providing forwarding and logistics services and associated supply chain management. Respondent no.2 filed a complaint with PS Economic Offence Wing (EOW) Delhi against the revisionist, directors and others. On the basis of false and frivolous facts mentioned in the abovesaid complaint with PS EOW Delhi, respondent no.2 filed an application under section 156(3) Cr.P.C Digitally signed Cr. Revision No. 125/2023 Page no.2 of 33 NAVJEET by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:10:43 +0530 read with under section 200 Cr.P.C before Ld. CMM, South, Saket Courts and in pursuance thereto action taken report (ATR) was called and as per the ATR, complainant had to pay the EMIs to the financer and service charges to the alleged. Initially complainant paid some amount but later stopped the payment of EMIs and charges, the remaining EMIs were paid by the alleged. Further as per ATR, complainant claimed that he paid Rs.5,21,56,630/ as per the agreement in regard of EMIs and services whereas the alleged mentioned that he already rendered services worth of Rs.8,20,44,992/ as per the agreement and claimed Rs.3,43,40,362/ from complainant. Therefore, the matter is regarding non payment of money, therefore, no cognizable offence is made out and complaint is closed being civil in nature.
From the facts averred in the application under section 156(3) Cr.P.C read with section 200 Cr.P.C made by the respondent no.2, the matter is of purely a civil nature and no cognizable offence of any kind is made out, still the Ld. CMM erred in deducing that a cognizable offence has been made out from the allegations leveled in the complaint. Ld. CMM has further erred in the passing direction to the SHO concerned to register the FIR on the basis of false, frivolous allegations and in a matter which any case makes out nothing more than a mere civil dispute between the parties. Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2024.01.20 Cr. Revision No. 125/2023 Page no.3 of 33 12:10:50 +0530 The memorandum of understanding (MoU) for freight under Management (FuM) was executed between respondent no.2 and revisionist no.1 on 20.09.2018 and in furtherance to the MoU, the service agreement dated 05.10.2018 for freight under management executed between respondent no.2 and revisionist no.1 and the MoU and the service agreement are admitted documents from the both the sides. Revisionist no.1 had to provide self owned fleet of trucks and also to provide and manage the manpower, insurance, toll taxes, fuel, system and processes for management of fleet of trucks, a total number of 92 self owned trucks were deployed by revisionist no.1 under the above service agreement and the said agreement was effective from 18.09.2018 and was valid for a period of 3 years i.e. till 17.09.2021. Revisionist no.1 was obligated to perform minimum three trips (to and fro) per truck per month and such trips were bare minimum for proper recovery of costs to be incurred by revisionist.
93 trucks which were owned by revisionist no.1 and deployed under the abovesaid service agreement were hypothecated to financial institutions and as per service agreement, respondent no.2 had to pay Rs.42,000/ per truck per month directly to the financial institutions. From the period late 2019 to March 2021, due to Cr. Revision No. 125/2023 Page no.4 of 33 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:10:57 +0530 the covid induced lockdown and general economic downturn, the 92 trucks deployed under the service agreement had to incur long waitings for days at various factory locations across India due to which revisionist no.1 had to incur extra costs on insurance, permit, fuel, driver/staff salaries. Besides extra costs, and due to lesser KMs running of trucks, it further resulted in lesser revenue for revisionist no.1. Therefore, revisionist no.1 had to incur double financial loss. The driver staff agitation was also left to Jalan to manage as all the staff were employed by Jalan under the service agreement. Civil dispute continued between revisionist no.1 and respondent no.2 owing to increase cost and lesser revenue during the period late 20192021, respondent no.2 recommended cost audit for the accounts of revisionist no.1 and even in spite of the cost audit undertaken by team of respondent no.2, no contribution was made by the respondent no.2 either towards excessive costs incurred by revisionist towards waiting period at factory location, or towards recovery of charges owing to lesser KMs traveled by trucks.
Due to excessive costs, under recoveries and additional/penal interest levied by financial institutions with whom Jalan hypothecated the trucks (since respondent no.2 stopped making payments to financial institutions of Rs.42,000/ per truck per month from March 2021 onwards, being their Cr. Revision No. 125/2023 Page no.5 of 33 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:11:03 +0530 obligation under the service agreement) an amount of Rs.3,42,40,362/ had to be borne by revisionist no.1 for non plausible reason and revisionist no.1 claimed the amount of Rs.3,42,40,362/ from respondent no.2. The disputes were continuously raised to respondent no.2 by revisionist no.1 vide various emails that as the terms of the service agreement became onerous on respondent no.2 and they failed to adhere to their commitments under the service agreement, respondent no.2 stopped doing any business with revisionist even before expiry of the terms of the agreement and abruptly abandoned the agreement. Respondent no.2 stopped giving payment of Rs.42,000/ per truck per month to the financers and further stopped loading trucks of revisionist no.1 standing at various factory locations across country. After abruptly stopping the business with revisionist, respondent no.2 demanded 23 trucks from revisionist no.1 vide email dated 10.05.2021. Revisionist no.1 made it clear that till the time old pending issues are resolved, revisionist shall not allow any sale of trucks.
To resolve all the disputes inter se, the parties had a meeting on 11.06.2021 and pending disputes were finalized and it was mutually agreed inter alia: (1) All advances standing in the books of respondent no.2 in the name of revisionist no.1 shall be knocked of by respondent no.2; (II) Respondent no.2 Cr. Revision No. 125/2023 Page no.6 of 33 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:11:10 +0530 will give NOC to Hero for revisionist to do business with Hero for 69 trucks; (III) After NOCs are given by respondent no.2 to Hero, revisionist shall transfer ownership of 23 truck to respondent no.2.
On 29.06.2021, email communication was made by Sh. Manish Jalan to respondent no.2. NOC was given by respondent no.2 to revisionist no.1 vide their communication dated 04.07.2021 stating therein "with reference to the 69 vehicles list given below, we have no objection for Jalan Transolutions India Ltd for operating them with any company". From 11.06.2021 to 16.09.2021, revisionist no.1 acting under the new arrangement handed over custody and ownership of 17 out of 23 trucks to respondent no.2 and around 16.09.2021 custody and ownership of remaining 6 trucks were also transferred by revisionist to respondent no.2 thereby complying with their part of the obligation under the newly agreed arrangement between the parties in their meeting dated 11.06.2021.
After 16.09.2021, no further demand of any truck or any money payable by revisionist no.1 to respondent no.2 or any other kind is made by respondent no.2 to revisionist no.1 and revisionist no.1 continued to pursue their business operations independently with Hero/other vendors. Respondent no.2 exited the service agreement dated Cr. Revision No. 125/2023 Page no.7 of 33 05.10.2018 (which was effective till 17.09.2021) from March 2021 onwards and stopped performing their part of the obligation from March 2021 onwards. Further sum of Rs.3,42,40,362/ were payable by respondent to revisionist no.1 for additional overheads/cost incurred by revisionist no.1 and under recoveries due to covid lockdown and economic downturn. The parties settled their dispute as per new arrangement/agreement and as per agreement revisionist handed over custody and possession of 23 trucks to respondent no.2.
3. Reply to the revision petition was filed on behalf of respondent no.2, inter alia, with following submissions:
The revisionist has made false statement, gross misrepresentations and have suppressed/concealed material facts along with information and the revisionist are not entitled for any relief.
In the initial complaint to EOW and subsequent complaint, the complainant has arrayed six accused but the revisionist has filed revision on behalf of two and sought relief on behalf of the said two revisionist. The resolution of appointment of authorized person in favour of Sh. Manish Jalan is bad in law, the same is dated 07.12.2022 which is much before the filing of this revision Cr. Revision No. 125/2023 Page no.8 of 33 petition and he is not authorized to appoint Advocate/pleader to represent the said company and on reading the above resolution, it reflects the same power has been given in regard to taxation purposes only.
Ld. CMM has rightly come to the conclusion after analyzing and appreciating the complete facts and circumstances and a detailed inquiry of the ATR filed by the EOW in the present matter and therefore there was sufficient ground for allowing petition u/s 156(3) Cr.P.C and there is no infirmity in the order passed by Ld. CMM.
All the allegations made by the revisionist in the revision are denied in its entirety and the present revision is an abuse of the process of law, not maintainable and devoid of any merits.
In the month of June 2020, a meeting for reconciliation of accounts took place, wherein after reckoning of statement of account of the respective companies, an amount of Rs.4,87,68,891.42/ as on 31.03.2020, was duly acknowledged to be paid by the revisionist, for and on behalf of the revisionist company. In the month of March 2021, the revisionist in connivance with the accused no.5 (Sanjay Sharma) expressed that because of the Covid restrictions, the business had suffered immensely and he was unable to bear the salaries of drivers, parking and maintenance of trucks. Thereafter, since a colossal Cr. Revision No. 125/2023 Page no.9 of 33 amounts of advance was to be returned by the revisionist, a meeting was held at the registered office of the respondent company, wherein after ascertaining the amount incurred towards the EMIs, it was determined that said amounts equated towards the valuation of 65 trucks and the revisionist assured and promised to handover the said trucks in good working condition to the respondent company.
Apart from the aforesaid, an amount of Rs.4,71,56,630.58/ was also remained to be paid by the revisionist, which was advanced by the respondent company for running operation of the business.
Revisionist after hatching a preplanned conspiracy with accused no.6 (Anil Kumar), induced the respondent to obtain an NOC from the respondent company for the purposes of utilizing 65 trucks for transporting goods of company other than the respondent company, in order to generate revenue to settle the outstanding the amount. On the specific assurances and inducement of the revisionist, the respondent vide its email dated 11.06.2021, gave no objection certificate to the revisionist to utilize 65 trucks for mobilizing goods of other company/companies and thereby use the income from said transaction to pay off the amount owed by the revisionist company to the respondent company.
Revisionist had assured and promised to handover Cr. Revision No. 125/2023 Page no.10 of 33 trucks in good working condition, however, 23 trucks handed over to the complainant/respondent company were in extremely poor and nonworking condition, the batteries, tyres and other essential components from the trucks were removed at the instance of the revisionist.
In lieu of the wrongful loss suffered by the respondent company, the revisionist assured to pay an amount of Rs.50 lacs. Thus, the revisionist for and on behalf of the revisionist company specifically agreed to pay an amount of Rs.5,21,56,630.58/ which include initial mobilization advance and the amount as already mentioned.
When no payments were being made by the accused/revisionist company despite the specific assurances, the officials of the respondent company requested the revisionist to return the remaining 42 trucks. That even after the repeated requests of the officials of the complainant/respondent company, to the utter shock and surprise of the officials of the complainant/respondent company, the revisionist started avoiding the officials of the complainant/respondent company to hand over 42 trucks despite the specific assurances and promises of the revisionist.
The officials of the respondent company has also learnt that the revisionist has illicitly and fraudulently sold 17 trucks out of 42 trucks, which were entrusted by the Digitally signed by NAVJEET Cr. Revision No. 125/2023 Page no.11 of NAVJEET 33 BUDHIRAJA BUDHIRAJA Date:
2024.01.20 12:11:20 +0530 complainant/respondent company to the revisionist, explicitly for the purposes of generating revenue to repay the outstanding amounts.
Revisionist along with other accused persons in pre planned and well knitted conspiracy sold 17 trucks and there is grave apprehension that the said accused persons will criminally misappropriate the remaining 25 trucks and has criminally breached the trust of the complainant/respondent company as a carrier. Accused persons have cheated the respondent company having the knowledge that it shall lead to wrongful loss to the respondent company.
Revisionist directors who are managing the day to day affairs of the revisionist company have dishonestly or fraudulently executed deed of transfer on the basis of statement and obtained consideration by selling of 17 trucks to new owners. The revisionist in connivance with other directors of the revisionist company has dishonestly and deceitfully induced the officials of the respondent company to retain 65 trucks, thereafter fraudulently sold 17 trucks to third party and criminally misappropriated the sale proceed of the trucks so sold. Revisionist in the abovesaid manner have cheated the respondent company to the tune of Rs.5,21,56,630.58/ and the officials of the respondent company have also learnt that after cheating the respondent company of huge amounts, are now Cr. Revision No. 125/2023 Page no.12 of 33 in process of winding up their business and flee the country. Ld. counsel for respondent, to bolster his submissions, has relied upon the judgments which are as under:
A. Lallan Chaudhary and Ors Vs. State of Bihar and Anr, 2006 (3) JCC 1731;
B. Ramesh Kumari Vs. State (NCT of Delhi) and Ors, 2006 1 AD (Cr.) S.C. 505;
C. State of Haryana and Ors Vs. Bhajan Lal and Ors, 1992 Supp (1) SCC 335;
D. Amit Khera Vs. State, Writ Petition no.804/2008, High Court of Delhi;
E. Suresh Jain Vs. State of MP, 2011 AD (Cr.) SC 34; F. Vijay Prakash and Another Vs. State of UP, (2000) CRL LJ 4157, Allahabad High Court;
G. Rajesh Bajaj Vs. State of NCT of Delhi and Ors, 1999 CRL L J 1833;
H. Dr. Rajni Palriwala Vs. Dr. D Mohan and Another, 2009 (3) JCC 1896;
I. Vijayander Kumar and Ors Vs. State of Rajasthan and Another, 2014 (2) LRC 22 (SC);
J. Ravindra K Madhanlal Goenka and Another Vs. Rugmini Ram Raghav Spinners Pvt Ltd, (2009) 11 SCC 529; K. Iqbal Singh Marwa and Another Vs. Meenakshi Marwa and Another, 2005 II AD (CR) SC 12;
Cr. Revision No. 125/2023 Page no.13 of 33 L. Sobren Singh and Ors Vs. State of UP, 2005 CRL L J 2028; M. Acharya Arun Dev Vs. State and Another, 2005 (2) JCC 897; N. Priya Gupta Vs. The State, 2007 (2) JCC 1330; O. Madhu Bala Vs. Suresh Kumar and Ors, 1997 8 SCC 476; P. Bishamber Dayal Yadav and Another Vs. State, 2007 (4) JCC 2584.
4. Having heard the rival contentions, I hereby return my finding as infra.
5. At the outset, I advert to one of the preliminary contention on behalf of the respondent that the present revision petition has not been properly filed as the resolution of appointment of authorized person in favor of Sh. Manish Jalan is bad in law, the same is dated 07.12.2022 which is much before the filing of this revision petition dated 05.04.2023, he is also not authorized to appoint an advocate/pleader to represent the said company nor authorized to file any revision petition before any court as it is reflected that the said power was given in regard to the taxation purposes only. But this argument does not hold any merit as the respondent has failed to point out any specific duration for which the board resolution is effective. Further, the board resolution clearly reflects that Sh. Manish Jalan has been authorized to represent the company in all legal proceedings Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:11:27 +0530 Cr. Revision No. 125/2023 Page no.14 of 33 before the court and to sign the documents, letters, correspondence etc on behalf of the company in legal proceedings before the authorities. The words 'all legal proceedings' would encompass the authorization to file the revision as also to appoint the pleader/advocate. Thus, the contention of improper authorization in favor of authorized representative of revisionist is not tenable.
6. Ld. CMM vide impugned order dated 03.04.2023 had found from the facts of the case as alleged in the complaint that prima facie, cognizable offence is made out. The relevant finding of the said order is extracted as under:
"19. Clearly, recovery of trucks is to be effected. The persons to whom 17 trucks, allegedly sold by the proposed accused persons, are also to be found out and may be needed to be equired, which is beyond the power/capability of the complainant.
20. Considering the gravity of the allegations, the Court is of the opinion that it is expedient to order investigation in the present matter in exercise of the judicial power under Section 156(3) Cr.P.C. The facts pleaded by complainant are such which necessitate intervention of State machinery in the form of police investigation and the complainant would not be in a position to collect evidence.
21. In view of the facts and circumstances, the complaint Cr. Revision No. 125/2023 Page no.15 of 33 discloses commission of cognizable offences for which an FIR is warranted. Present application under Section 156(3) Cr.P.C is allowed. Concerned SHO is directed to convert the contents of police complaint as FIR and investigate the matter fairly."
7. In the revision petition, revisionist from paragraph 8 onwards has submitted the narrative from its side but as such has not raised any demur on the following facts:
(I) that in the month of September 2018, respondent company had obtained a business prospect from the revisionist who approached the officials of the respondent company in the month of September 2018 and represented them that the revisionist has been providing services of road transportation, cargo handling, ancillary services etc. (II) that numerous meetings were held between the officials of revisionist and the respondent company wherein terms and covenants of the agreement were discussed and negotiated (III) that the revisionist company and respondent company entered into a service agreement for freight under management dated 05.10.2018 as per which revisionist was to provide freight management service, transportation services of carrying goods/materials of the complainant company, timely delivery of goods management and payment of truck operation/maintenance and in respect of which revisionist was to raise invoice for freight Digitally signed by NAVJEET Cr. Revision No. 125/2023 Page no.16 of 33 NAVJEET BUDHIRAJA BUDHIRAJA Date:
2024.01.20 12:11:35 +0530 management fee and payment was to be made after adjustment the mobilization advances/other advances in accordance with the agreement.
(IV) that it was also agreed that 103 trucks will be deployed by the revisionist to undertake the operation of the freight services. (V) that it was agreed that the advances shall be paid by the revisionist company to the financial institutions/banks through which the trucks were financed.
(VI) that respondent company paid the amount of Rs.1,07,83,539.80/- to financial institutions which was termed as mobilization advance.
(VII) that 103 trucks were to be transferred in the name of the respondent company after three years of contribution towards EMI @ Rs.42,000/- per month per truck. (VIII) that in the month of October 2019, it was put forth by the revisionist to the officials of the respondent company that the total count of 92 trucks already deployed to the trucks suffices the operations of the scope of work of the agreement and addendum to the service agreement dated 01.10.2019 was executed between the revisionist and the respondent, thus, making the respondent accountable for contribution of EMI of Rs.42,000/- per month per truck for a total number of 92 trucks. (IX) that in the month of March 2021, the revisionist expressed that because of covid restrictions, the business had suffered immensely and it was unable to bear the salaries of drivers, Cr. Revision No. 125/2023 Page no.17 ofNAVJEET 33 Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:11:43 +0530 parking and maintenance of the trucks.
8. Having noted the aforesaid undisputed facts, the revisionist has assailed the impugned order on the back of a meeting convened on 11.06.2021 between the revisionist and respondent wherein a comprehensive settlement over and beyond and superseding the service agreement was allegedly arrived at between both the parties, terms of which arrangement are as under:
I. Out of 92 Trucks owned by revisionist no.1 (including through tis subsidiaries) ownership of 23 trucks shall be transferred to be respondent no.2. Revisionist no.1 to continue with ownership of remaining 69 trucks.
II. The advances of Rs.52804630.42/- standing in the books of revisionist shall be billed under various heads after discussion with accounts and finance team of the respondent no.2 and GST on the billed amount to be reimbursed by Apollo. III. The revisionist shall forego their right to recover Rs.34240362/- from the respondent no.2 in view of above said comprehensive settlement.
IV. The respondent no.2 shall pay Rs.10,00,000/- to the revisionist to partially compensate the expenses incurred in lockdown during April and May 2021. V. The revisionist shall be discharged from the rigors of MOU/Service Level Agreement and can freely work with any Cr. Revision No. 125/2023 Page no.18 of 33 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:11:49 +0530 vendor of their choice and existing business with Hero Motocorp shall be done exclusively by the revisionist on 1 to 1 basis.
9. In order to build further on the aforesaid narrative, Ld. counsel for revisionist, during arguments, alluded to various emails exchanged between the parties, some of which I deem it judicious to reproduce herein under:
"From: Manish Jalan <[email protected]> sent:10.05.2021 13:19 Dear Amit ji Further it already more than 15 days since the trucks are standing at various locations due to lockdown. Amounts are required to be paid to drivers for such detention before moving them. So kindly arrange for the same also.
Also since you hadn't paid EMI last month, if any truck is detained by any of the financiers, we shall not be liable for the same and all costs have to be incurred by Apollo for release of the same.
On 10-May-2021, at 12:43 PM, Amit Parnandiwar <[email protected]> wrote:
Dear Manishji One more point was left and that is of handover of 23 vehicles for which the EMI's with the bank were finished and we had planned to sell them to generate some funds for better utilisation.
Regards Amit Parnandiwar Chief- Dry ports Cr. Revision No. 125/2023 Page no.19 of 33 From: Manish Jalan <[email protected]> Sent: 27 May 2021 11:17 To: Amit Parnandiwar Dear Amit Ji As Hero has started loading since last 10 days but our trucks are not being loaded, there is huge dissatisfaction among the drivers and I am beginning to lost control over them.
We have to act fast as it may result in heavy losses.
From: Manish Jalan <[email protected]> Sent: 18 June 2021 22:14 To: Amit Parnandiwar Dear Amit Ji As you are aware that all of our matters were finalized in meeting held on 11th June at Apollo Towers, Gurgaon, wherein it was mutually agreed as under:
- All advances in name of Jalan shall be knocked off by Apollo.
- Apollo will communicate to Hero for the development and give NOC to them for Jalan to do business directly with Hero for 69 trucks.
- Once NOC is given to Hero by Apollo, Jalan will hand over 23 Trucks to Apollo.
- Apollo will pay 10.00 lacs to Jalan to partially compensate expenses incurred since lock down till date.
Surprisingly one week is passed and till date no progress is there in any of the matter.
You are once again requested to take it seriously as keeping fleet Cr. Revision No. 125/2023 Page no.20 of 33 idle is of no use and if the matter is delayed further it will be quite difficult for us to honor our commitments.
From: Manish Jalan <[email protected]> Sent: 29 June 2021 20:31 To: 'Amit Parnandiwar'; 'Akshat Pushp' Dear Amit ji Please refer our mutual settlement wherein we agreed to part away with 69 trucks with Jalan and 23 trucks with Apollo. The same was also communicated by you to Team Hero.
I am attaching, the list of 69 trucks of Jalan which you please either confirm or raise a dispute on the same if any.
From: Akshat Pushp <[email protected]> Sent: 04 July 2021 21:23 To:
[email protected] Dear Mr. Manish Jalan, With reference to the 69 vehicle list given below, we have No objection for Jalan Transolutions India Ltd for operating them with any company.
From: Manish Jalan <[email protected]> Sent: 16 August 2021 12:33 To: Amit Parnandiwar Dear Amit ji Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2024.01.20 Cr. Revision No. 125/2023 Page no.21 of 33 12:11:58 +0530 Again same thing being happening that Apollo is taking U-turn on its commitments, thereby making false allegations on us.
While discussing all matters with you, it was not seemed like that.
But the market feedback was correct.
Didn't expected from you.
From: Amit Parnandiwar (mailto:[email protected]) Sent: 16 August 2021 11:56 To: Manish Jalan Dear Manishji Please note the following
1. I am out of the process now and is now being looked after by legal. One important reason for the same is that you had failed on your commitments on handing over of these 23 trucks in running condition, where in tyres, batteries and other components were taken out by you.
2. I could still request legal to look into concluding the same with you only in case you handover the balance trucks in running condition, components of trucks which were taken out and NOC's and other things pending.
You may communicate with our legal directly ass I have been let down but if you wish I shall looking at old relations, try to puruse them for a meeting with you upon your confirmation on the above.
On 16 August 2021 at 11:42:07
AM, Manish Jalan
Cr. Revision No. 125/2023 Page no.22 of 33
([email protected]) wrote:
Dear Amit ji Out of 23 trucks, seventeen trucks possessions is already taken by your team and balance 6 trucks are also available to be handed over. The same was communicated to Parveen ji last week itself, after which he called me to Apollo office to conclude all the matters point wise but nothing was done on that day.
Kindly requested to close the matter immediately in a good node so that we could proceed further accordingly.
On Jul 8, 2021, at 1:42 PM, Manish Jalan <[email protected]> wrote:
Dear Amit ji In continuation to terms agreed in the meeting, you are kindly requested to remit 10.00 lacs immediately for partially compensating expenses during lockdown.
Also further requested to conclude other matters related to agreement/ knocking off of advances etc. Dear Amit ji As you are aware that all of our matters were finalized in meeting held on 11th June at Apollo Towers, Gurgaon, wherein it was mutually agreed as under:
-All advances in name of Jalan shall be knocked off by Apollo.
- Apollo will communicate to Hero Cr. Revision No. 125/2023 Page no.23 of 33 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2024.01.20 12:12:05 +0530 for the development and give NOC to them for Jalan to do business directly with Hero for 69 trucks.
- Once NOC is given to Hero by Apollo, Jalan will hand over 23 Trucks to Apollo.
- Apollo will pay 10.00 lacs to Jalan to partially compensate expenses incurred since lock down till date.
Surprisingly one week is passed and till date no progress is there in any of the matter.
You are once again requested to take it seriously as keeping fleet idle is of no use and if the matter is delayed further it will be quite difficult for us to honor our commitments.
From: Manish Jalan <[email protected]> Sent: 01 July 2021 16:14 To: Amit Parnandiwar Dear Amit ji I was under huge pressure and different state of mind at the time I wore the trailing mail.
Please don't go through the words of the same and I hereby withdraw the same.
From: Manish Jalan <[email protected]> To: [email protected] Dear Sir Please find attached bill no.001/2022-23 dated 28.10.2022 for your kind perusal.
Further as per our MOU dated
Cr. Revision No. 125/2023 Page no.24 of 33
20.09.2018 and further final
settlement meeting dated
11.06.2021, an amount of
Rs.3,42,40,362.00/- is receivable from you, which you please remit, so that we could raise the bill for same also."
10. It is pertinent to note that the exchange of aforesaid emails has not been expostulated on behalf of the respondent. Now, the focal point, as culled out, from the aforesaid emails is that a meeting took place between the parties on 11.06.2021 and as per the revisionist, it was mutually agreed that all advances in the name of Jalan shall be knocked off by the Apollo, Apollo will communicate to Hero for the development and give NOC to Jalan to do business directly with Hero for 69 trucks, once NOC is given to Hero by Apollo, Jalan will hand over 23 trucks to Apollo and Apollo will pay Rs.10 lacs to Jalan to partially compensate the expenses incurred since lock down. It is also an irrefragable position from the side of the respondent company that vide its email dated 11.06.2021, it gave a no objection certificate to the revisionist to utilize 65 trucks for mobilizing goods of other company, though, their stand is that the income generated from the said transaction was to pay of the amount owed by the revisionist to the respondent company.
11. In furtherance to above, an email dated 18.06.2021 was purportedly sent by the revisionist to the respondent Cr. Revision No. 125/2023 Page no.25 of 33 apprising it that no progress was done on the agreement arrived on 11.06.2021. But there was no response to this mail from the respondent side. Again on 29.06.2021, mutual settlement was referred to by the revisionist to the respondent again apprising it that there was an agreement to part way with 69 trucks with Jalan and the list of 69 trucks was attached and respondent was asked to either confirm or raise the dispute on the same. In response to the said email, the respondent wrote to Mr. Manish Jalan that with reference to 69 trucks, they have no objection for revisionist for operating them with any company.
12. The use of word 'operating' is also one of the flash points between the parties. On behalf of the respondent, it is contended that the word 'operating' would not be equated with giving NOC to sell the trucks whereas it is contended on behalf of the revisionist that revisionist was at liberty to deal with any third party in regard to 69 trucks, out of which 17 trucks have admittedly been sold to the third party.
13. Further, with regard to the allegation that 17 trucks were illicitly and fraudulently sold by the revisionist, it is observed that along with the complaint itself, in the chain of emails exchanged between the parties, in the email dated 15.09.2021, it was informed to the respondent on behalf of the revisionist that some of the trucks have been sold at a good rate Digitally signed by NAVJEET NAVJEET BUDHIRAJA Cr. Revision No. 125/2023 Page no.26 of 33 BUDHIRAJA Date: 2024.01.20 12:12:15 +0530 of Rs.7,55,000/- per truck and a proposal was made to the respondent company for the purchase of remaining 06 trucks out of 23 trucks by the same buyer. This email reveals that the act of selling the trucks was made known to the respondent by the revisionist itself and, thus, prima facie the allegation of illicit and fraudulent sell of the trucks by the revisionist does not stand substantiated.
14. The substantive offences invoked on behalf of the respondent are Section 406 and 420 IPC. For invocation of the offence 406 IPC, the essential ingredients are entrustment of property, dishonest, misappropriation or conversion of the same for his own use in violation of expressed or implied legal contract. For the offence under Section 420 IPC also, cheating and dishonest inducement of delivery of the property are required. In M/s Mideast Integrated Steels Ltd. Vs State of Jharkhand dated 17.03.2023, it was held by High Court of Jharkhand that in order to make out a case of cheating, the accused must have fraudulent or dishonest intention at the time of making the promise. Mere breach of contract is not criminal, unless it was at the same time dishonest and was manifested by some overt act. It also held that for entrustment, the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them.
Cr. Revision No. 125/2023 Page no.27 of 33
15. In the instant case, it is an admitted position that the business transactions between the parties were initiated in the month of September 2018 and it is only in June 2020 that a meeting for reconciliation of accounts took place between the parties and as per the complaint, an amount of Rs.4,87,68,891.42/- was duly acknowledged to be paid by the revisionist as on 31.03.2020.
16. It can be assumed that during the aforesaid period from September 2018 till June 2020, the business must have been transacted between the parties with credit and debit entries. Though, on behalf of the respondent company, it has been sought to be proffered that the revisionist harbored the dishonest intention from the very beginning, but it is not made out from the factual matrix emerged herein. It is not the case herein that right from the inception, the dues became outstanding against the revisionist in respect of the business transaction. As noted above, for the offence of cheating, dishonest intention right from the beginning has to be shown and not mere non fulfillment of obligations which may arise in the course of business transactions, which would amount to mere breach of contract, for which the aggrieved party ought to resort to civil remedies. In the case in hand also, the alleged outstanding liability to the tune of Rs.5,21,56,630.58/- of the revisionist is thus held to be a matter of civil dispute and, on this premise, the launch of criminal Cr. Revision No. 125/2023 Page no.28 of 33 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2024.01.20 12:12:23 +0530 proceedings against the revisionist is unwarranted.
17. I also refer to the Judgment of Supreme Court in Sarabjeet Kaur Vs The State of Punjab & Anr. dated 01.03.2023, it was also held that a breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. The relevant fragment of the judgment is reproduced as under :
"A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that the respondent No.2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by the respondent No.2. when the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not Digitally signed by NAVJEET BUDHIRAJA NAVJEET BUDHIRAJA Date:
2024.01.20 Cr. Revision No. 125/2023 Page no.29 of 33 12:12:29 +0530 there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are mde out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court."
18. With regard to the 'entrustment' of alleged trucks in favour of the respondent company, it is argued that revisionist had signed Form 29 and 30 in favor of the respondent company which proved its ownership over the trucks, out of which 17 trucks were admittedly sold to the third party. From the aforesaid position, it is prima facie not made out that the revisionist had sold of all the trucks to the respondent company and the revisionist were merely entrusted with those trucks to transact business with third party. Mere signing of Form 29 and 30 would not confer ownership of those trucks in favor of respondent company. It is not the case herein that the respondent had paid EMIs as agreed upon for the entire period of the contract between the parties so as to claim their entitlement to recover all the Cr. Revision No. 125/2023 Page no.30 of 33 trucks. From the conversation between the parties through emails noted above, it can be extrapolated that 23 trucks were agreed to be handed over to the respondent company out of which 17 trucks were given and in regard to remaining 6 trucks, revisionist was always ready and willing to hand over the same to the respondent company. Though, it is the stand of the respondent that condition of trucks given was dilapidated and non functional but again in regard to that also respondent company was at liberty to avail their remedies against the revisionist. It is also claimed on behalf of the respondent company that they have paid EMIs towards the valuation of 65 trucks and the revisionist had assured and promised to handover those trucks in good working condition, however, this fact is also not substantiated from the emails correspondence between the parties in the form of admitted emails. At the cost of repetition, it is also observed herein that respondent company has not come clean on the terms and conditions agreed upon between the parties in the meeting that was admittedly held at the office of the complainant. Revisionist, on the contrary, has taken consistent stand by chalking out the terms and conditions agreed upon between the parties, which were not complied with by the respondent.
19. I shall now dwell upon some of the relevant judgments mentioned in the reply to the revision petition. The judgment in Lallan Chaudhry and Ors (supra), Ramesh Kumari Digitally signed by NAVJEET NAVJEET BUDHIRAJA Cr. Revision No. 125/2023 Page no.31 ofBUDHIRAJA 33 Date: 2024.01.20 12:12:36 +0530 (supra), State of Haryana and Ors (supra) are on general principle of registration of the FIR on receipt of information disclosing cognizable offence. Judgment in Amit Khera (supra) is also on similar lines. Judgment in Vijay Prakash (supra), Rajesh Bajaj (supra), Vijayander Kumar and Ors (supra), Iqbal Singh Marwa (supra) are all facts centric in which civil and criminal liability has been discussed, which in my opinion, is not the case herein, as on careful analysis of the record, no cognizable offence appears to have been made out and rather the transaction between the parties is found to be entirely in the realm of a civil dispute.
20. Given the over all scenario, it is made out that the respondent by way of criminal proceedings, have attempted to give civil dispute, a color of criminality by employing the words 'dishonest', 'inducement' and 'allurement'. Admittedly, business transactions between the parties initiated in September 2018 and it was during the Covid-19 pandemic lockdown from March 2020, the things fell out. It is also an admitted position that accounts were reconciled by both the parties in between and audit of the revisionist was also got done by the respondent. The respondent has not come clean on the nitty-gritties of the meeting held between the parties on 11.6.2021. Respondent has not furnished any plausible explanation in reply to the revision petition as to terms and conditions which were purportedly agreed upon between the parties in the said meeting. It is also not Digitally signed by NAVJEET Cr. Revision No. 125/2023 Page no.32NAVJEET of 33 BUDHIRAJA BUDHIRAJA Date:
2024.01.20 12:12:41 +0530 made out that trucks in question were entrusted to the respondent for the misappropriation of which the FIR was directed to be registered. Thus, the impugned order vide which the FIR was directed to be registered is unsustainable and is accordingly directed to be set aside.
21. Let copy of this order be sent to Ld. CMM along with TCR. Revision file be consigned to record room.
Pronounced in the open court NAVJEET Digitally signed by NAVJEET BUDHIRAJA on 20.01.2024 BUDHIRAJA Date: 2024.01.20 12:12:47 +0530 (NAVJEET BUDHIRAJA) ASJ-02/SOUTH/SAKET COURTS NEW DELHI/20.01.2024 Certified that this judgment contains 33 pages (running into both sides) and each page bears my signatures.
NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2024.01.20 12:12:53 +0530 (NAVJEET BUDHIRAJA) ASJ-02/SOUTH/SAKET COURTS NEW DELHI/20.01.2024 Cr. Revision No. 125/2023 Page no.33 of 33