Gujarat High Court
Shivshankar Dudhnath Upadhyay vs State Of Gujarat on 24 November, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/SCR.A/729/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 729 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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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 or any order made thereunder ?
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SHIVSHANKAR DUDHNATH UPADHYAY....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR CHETAN K PANDYA, ADVOCATE for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 24//11/2017
CAV JUDGMENT
1. This Application has been filed by the applicant Page 1 of 18 HC-NIC Page 1 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT praying to quash and set aside the order passed in Criminal Case No. 3031 of 2010 by the Court of Additional Judicial Magistrate, First Class, Vapi below Exhibit 2 dated 23.02.2011 rejecting an application preferred under Section 239 of the Code of Criminal Procedure, 1973 (for brevity "CrPC") and to discharge the petitioner in connection with the Criminal Case No. 3031 of 2010 pending before the Court of Additional Judicial Magistrate First Class, Vapi.
2. Brief facts of the case are that the petitioner is a Transport Contractor and Commission Agent. He engaged in the business in the name and style of "Shri Krishna Roadlines" at Vapi GIDC. The petitioner does not own any truck. However, he calls for truck from the market and supplies it to the party after taking his commission. That, for supplying the goods at Kanpur, complainant called the petitioner to supply the truck and from market, Page 2 of 18 HC-NIC Page 2 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT the petitioner made available truck, being registration No. UP-70-AT-9985 having driver named Javed Mohammed Gafar and owner Pannalal Jaiswal. Yarn was loaded on 29.05.2010 and additional goods viz., chemical was loaded on the said truck, since the capacity of the truck was 16 tones. Neither the goods were delivered nor driver and truck was traceable for quite long period, and therefore, an FIR , being CR No. I-64 of 2010 was registered with Vapi GIDC Police Station under Section 407 and 114 of the Indian Penal Code on 09.06.2010, wherein, the petitioner was described as accused no.3. That, in this connection, the petitioner was arrested on 22.07.2010 and thereafter, released on bail. The Investigating Agency filed charge sheet against the petitioner on 21.08.2010, wherein he is mentioned as accused no.1, since the driver and owner of the truck were absconding. Thereafter, the petitioner preferred an Page 3 of 18 HC-NIC Page 3 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT application vide Ex. 2 in Criminal Case No. 3031 of 2010 before the learned Judicial Magistrate, First Class, Vapi under Section 239 CrPC to discharge him. The said application came to be rejected by the Court of learned Additional Judicial Magistrate, First Class, Vapi on 23.02.2011 and as against the said order, the petitioner has preferred the present petition.
3. Heard learned advocate Mr. Chetan K. Pandya appearing on behalf of the petitioner and learned APP Mr. LB Dabhi appearing on behalf of the respondent no.1-State.
4. Learned advocate Mr. Chetan K. Pandya appearing on behalf of the petitioner submitted that the impugned judgment and order passed by the trial court dated 23rd February 2011 below Application Exhibit 2 in Criminal Case No. 3031 of 2010 is contrary to law and evidence on the record. That, the learned Judge has failed to appreciate that Page 4 of 18 HC-NIC Page 4 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT the petitioner is the broker and has nothing to do with the alleged offence. It is further submitted that the petitioner is engaged in the business as a Transport Contractor and Commission Agent since years together and it is the practice in the business to call for truck from the market for transportation of goods. It is the practice in the market that wherever truck would come to Vapi, it could be loaded and after unloading, it would report to various commission agents for return goods of the particular State. The petitioner has acted as a commission agent between the truck owner/driver and the informant. The truck directly went to the informant and the informant instructed the truck driver to go to Sudarshan Mill to load the goods That, the goods were directly loaded by Sudarshan Mills into the truck. That, there is nothing in the charge sheet to show that goods were entrusted to the present petitioner. That, the petitioner is not the Page 5 of 18 HC-NIC Page 5 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT carrier, wharfinger or warehouse keeper, as no goods were entrusted to him, and therefore, he cannot be responsible for the offence, as alleged in the complaint. There is nothing in the charge sheet papers to show that the petitioner has abated the offence of criminal breach of trust. That, the offence punishable under Section 407 of the Indian Penal Code, 1860 is never made out against the present petitioner, as he is the commission agent only and the provisions thereof cannot be applied against the petitioner. That, the ingredients under Section 407 IPC are not satisfied, as he is a Broker. That, instructions mentioned in the letter head of "Krishna Road Lines" clearly shows that party should verify the vehicle documents and if they found genuine on their verification and then only they should entrust the goods. That, the petitioner was not present either at the time, when the truck reached at the informant's premises or at the time of loading of the Page 6 of 18 HC-NIC Page 6 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT goods, or even at the time when the truck left. That, there is no evidence that the petitioner was with the truck at any point of time or even during its transit. That, no offence has been committed under Section 407 and 114 IPC by the petitioner. In support of his arguments, learned advocate Mr. Chetan Pandya has relied upon the judgments, reported in Crimes (HC) 1 (1985) 453 (Panna Lal Maheshwari v. Rajindal Kumar Agarwalla) and 1991 GLH 248 ( Dhramchand son of Gopi Ram v. State of Gujarat).
5. Per contra, learned Additional Public Prosecutor Mr. LB Dabhi appearing on behalf of the respondent no.1/prosecution strongly opposed the arguments made on behalf of the petitioner to contend that learned trial Court has rightly dismissed the application for discharge submitted by the petitioner by observing that Section 114 IPC is applied and participation of the applicant in the offence can only be decided after the evidence is Page 7 of 18 HC-NIC Page 7 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT led in trial. It is further submitted that the conduct of the petitioner is suspicious, and therefore, he may be punished under Section 114 IPC read with Section 407 IPC. That, the judgment relied upon by the petitioner of Patna High Court is not applicable. While in the instance case, further charge of Section 114 of the Indian Penal Code is applied, since prima facie, abetment of the present petitioner is found. It is further submitted that when two views are possible, this Court should not interfere with the finding of the trial Court. That, there is no illegality or error committed by the learned Court below in dismissing the application for discharge, presuming that no conviction would be passed in future. That, the ground raised by the petitioner in his application for discharge cannot be sustained, at this stage. Hence, it was requested by him to dismiss the petition.. In support of his arguments learned Additional Public Prosecutor has relied upon the Page 8 of 18 HC-NIC Page 8 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT judgments reported in 2009 (6) SCC 364, 2008(2) GLH 596 and 2009 (16) SCC 429.
6. Having considered the facts of the case and submissions made by learned advocates appearing on behalf of the petitioner as well as learned APP Mr. LB Dabhi appearing on behalf of the respondent no.1-State, it appears that the complainant approached the petitioner to supply a truck. The applicant, from the market, made available truck, being registration No. UP-70-AT-9985 having driver named Javed Mohammed Gafar and owner Pannalal Jaiswal. It appears that Yarn was loaded on 29.05.2010 and thereafter, additional goods viz., chemical was loaded in the truck, since the capacity of the truck was 16 tones. It appears that the goods loaded in the truck was not delivered and driver as well as truck were not traceable, and therefore, a complaint was lodged by the complainant, which came to be registered as C.R. No. I-64 of 2010 with Page 9 of 18 HC-NIC Page 9 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT Vapi GIDC Police Station for an offence punishable under Sections 407 and 114 IPC, wherein the present petitioner is shown as one of the accused. After completing the investigation of the offence, charge sheet was filed against the present petitioner on 21st August 2010, wherein he has been shown as Accused no.1. The driver and owner of the truck have been shown as absconders. During the course of investigation, statement of witnesses were recorded by the Investigating Agency. From the complaint, it transpires that on a request being made by the complainant, a truck was arranged by the present petitioner from the market, having driver namely Javed Mohammed Gafar, resident of Manikpur Kudda Pratap Gadh, Uttar Pradesh. The complainant, in his complaint, has shown status of the present petitioner as a Broker on 29th May 2010. A telephonic message was received by the present petitioner that the truck in question had not reached Page 10 of 18 HC-NIC Page 10 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT at its destination ie., Kanpur, Uttar Pradesh and for the first time on 5th June 2010, the present complainant was informed by the Manager of Kanpur Office that the truck had not reached at the destination, and therefore, the complainant informed him to wait for a day so that he could contact the driver. Hence, the complainant tried to contact driver-Javed and owner of the truck Pannalal Ashokkumar Jaiswal on the mobile number. As it was switched off, thereafter on 7th June 2010, as since the truck had not reached at the Kanpur office, the complainant contacted the present applicant and informed about the truck having not reached at the destination. From the statements of Ramesh Mahavir Sharma, Ashvini Shriramnivas Vashishtha, Arvind Shripalsing Yadav, Sandit Shrichand Tiwari and others, it transpires that the present petitioner was doing his business as a broker, who only arranged for the truck from market Page 11 of 18 HC-NIC Page 11 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT on commission basis. There was no entrustment of any goods to the present petitioner nor the petitioner has misappropriated the goods. One document in the form of letter head of Shree Krishna Roadlines, Vapi is produced during the course of arguments by learned advocate for the petitioner, which clearly speaks that, "please see that all the papers are correct. If not correct, please confirm with the owner of vehicle". It also shows that the liability to confirm papers of the motor vehicles are on the shoulders of the party, who requested for hiring the truck. From the charge sheet papers produced on record, it does not in any way show that the petitioner was present at the time of loading of the goods in the said truck or the said truck was loaded with the goods by him or entrusted to him. Thus, the petitioner is no any way responsible for the goods, if not reached at the destination. If the goods could not be delivered, Page 12 of 18 HC-NIC Page 12 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT then the complainant ought to have prosecuted the driver and owner of the truck, in which, goods were loaded. The petitioner, being only a broker and a commission agent, cannot be held responsible for breach of contract and he cannot be liable to be prosecuted under Section 407 IPC. Same view has been taken by the High Court Patna in Panna Lal Maheshwari v. Rajindal Kumar Agarwalla, reported in Crimes (HC) 1 (1985) 453 and in another judgment rendered in case of Dhramchand son of Gopi Ram v. State of Gujarat, reported in 1991 GLH 248, which being a petition under Section 482 CrPC filed for quashment of the complaint filed under Section 407, 420 and 114 of IPC. In the said FIR, there was no disclosure of any material, which would constitute any offence. Matter was underwent for investigation by the police and no process was issued by the Court. Under the circumstances, a question arose whether the Court can exercise its Page 13 of 18 HC-NIC Page 13 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT inherent jurisdiction under Section 482 CrPC to interfere with statutory powers of Police to investigate into the alleged offence, to secure the ends of justice. This Court, in the fact of situation, was pleased to hold that there was no question of any trust having been created by the accused in the complaint for committing criminal breach of trust under section 407 IPC and remedy under the Civil law is available to the complainant and he cannot resort to short out remedy of criminal prosecution. The complaint was quashed and petition was allowed by this Court.
7. In case of Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, reported in 2008(2) GLH 596, it has been held that, "the test to determine a prima facie case depends upon the facts of each case. By and large, however if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as Page 14 of 18 HC-NIC Page 14 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT distinguished from grave suspicion, he will be fully within his right to discharge the accused. It is not to see as to whether the trial will end in conviction or not. Test to be applied is whether the materials on record, if unrebutted makes conviction reasonably possible". There cannot be any dispute in respect of the observations or ratio laid down by the Apex Court and certainly, the facts of each case differs. Here, as the present petitioner was working as broker only and he had only arranged for a truck on a request made by the informant/ complainant, as he was not responsible for any loss of the good at any point of time. If it is stated that "if the goods is not delivered, within a week, it must be brought to our notice otherwise we are not held to be responsible" would not mean that any criminal liability would be entrustment on the shoulder of the present petitioner. If any damages are caused to the informant/complainant, Civil remedy would also Page 15 of 18 HC-NIC Page 15 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT be available to him. Thus, the judgment, as cited by learned APP Mr. LB Dabhi for the respondent no.1 would not helpful to the prosecution.
8. In case of Rumi Dhar (Smt) v. State of West Bengal & Anr., reported in (2009) 6 Supreme Court Cases 364, allegations were made for taking part in conspiracy in defrauding the Bank for taking loan. A Suit for recovery thereof was filed by Bank before DRT, in which settlement came to be arrived and loan was repaid by the appellant. The question was in respect of maintainability of criminal action initiated against the appellant. It was held that civil and criminal proceedings can proceed simultaneously and bank is entitled to recover the amount of loan given to debtor. If in connection with obtaining loan, criminal offences were committed by persons accused thereof, including officers of Bank. Criminal proceeding would also indisputably be maintainable, when the settlement is arrived at by Page 16 of 18 HC-NIC Page 16 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT and between creditor (Bank) and debtor (appellant), the offence committed, as such, does not come to an end.
9. Here, in the instant case, no civil remedy was chosen by the informant/complainant against the present petitioner for the loss caused to him, if any, but from the papers available on record, prima facie, no criminal offence is prima facie committed by the present petitioner under Section 407 IPC, as he being only a Broker, who arranged for a motor vehicle for carriage of goods.
10. In case of Central Bureau of Investigation v. Mukesh Pravinchandra Shroff & Ors., reported in (2009) 16 SCC 429, it has been held that at the stage of framing charge, what is required to be seen is whether there were sufficient grounds to proceed against the accused. In the cited case, order of acquittal in garb of order of discharge was passed by the learned Special Court, which was Page 17 of 18 HC-NIC Page 17 of 18 Created On Sat Nov 25 03:54:18 IST 2017 R/SCR.A/729/2012 CAV JUDGMENT challenged before the Apex Court and Appeals were allowed. Here also, looking to the facts of this case, there is no sufficient evidence found from the police papers to say that present petitioner had abetted criminal act, which is punishable under Section 407 IPC.
11. In the result, present petition succeeds. Order passed in Criminal Case No. 3031 of 2010 by the Court of Additional Judicial Magistrate, First Class, Vapi below Exhibit 2 dated 23.02.2011 rejecting application preferred under Section 239 CrPC to discharge him is hereby quashed and set aside with consequential proceedings. Accordingly, petitioner shall be discharged from the offence, as chargesheeted.
12. Rule discharged. Ad interim relief granted earlier is hereby confirmed. No costs.
(B.N. KARIA, J.) ksdarji Page 18 of 18 HC-NIC Page 18 of 18 Created On Sat Nov 25 03:54:18 IST 2017