Delhi District Court
Shree Gee Traders vs Naresh Garg on 22 September, 2022
1
IN THE COURT OF SH. VINEET KUMAR:
ADDITIONAL SESSIONS JUDGE-02; E COURT:
SHAHDARA: KARKARDOOMA COURT: DELHI.
Crl. (R) No. 107/2020
Shree Gee Traders
Through
Partner Deepak Jain
Office at Gali No.8,
Friends Colony, Shambhu
Compound, Industrial Area,
Dilshad Garden, Shahdara,
New Delhi-110095. ............... Revisionist/Petitioner
Versus
1. Naresh Garg
Mission road, opposite Jain Mandir,
Sonepat, Haryana.
2. Gaurav Garg
Mission road, opposite Jain Mandir,
Sonepat, Haryana.
3. Israr Mohammed
Burma Shall Lane,
Big Bazar Street,
Coimbatore, Tamil Nadu-641001. (dropped)
4. Anvar Deen
Burma Shall Lane,
Big Bazar Street,
Coimbatore, Tamil Nadu-641001. (dropped)
............... Respondents.
For petitioner : Advocate Mr. Hitesh Kumar.
For Respondent no.1 & 2 : Advocate Mr. Prayag Pawar
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2022.09.22
16:50:26 +0530
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Date of filing : 17.12.2020
Date of arguments : 03.09.2022
Date of order : 22.09.2022
ORDER
1. Present revision petition is preferred u/s. 399 read with Section 397 Cr.P.C by revisionist/petitioner against the order dated 30.07.2020 (hereinafter referred to as "impugned order") passed by Ld. MM (Shahdara), KKD Courts, Delhi, whereby the complaint under Section 200 Cr. PC, titled as M/s Shree Gee Traders Vs. Naresh Garg and others, filed by revisionist was dismissed by the Ld. MM.
2. Briefly stated, complainant/revisionist had filed a complaint u/s 200 Cr.P.C. against respondents stating that revisionist, the partnership firm registered under the Partnership Act 1952 having its registered office at Gali no.8, Friends Colony, Shambhu Nath Compound Industrial Area, G.T. Road, Dilshad Garden, District Shahdara, Delhi, was engaged in the business of trading of submersible pumps and mono-set pumps. The respondents approached the revisionist and offered a proposal for forwarding agency to sell their products i.e. submersible and mono-set pumps; that respondents induced the complainant with dishonest intention and misrepresented that they themselves manufactured the products and their product was having an international reputation; that complainant entered into an agreement dated 22.05.2012; that respondents demanded a sum of Rs.20,00,000/- from revisionist, as security amount VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:50:42 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 2/2 3 and revisionist had given cheques no. 190883 and 190884 each dated 15.06.2012 for an amount of Rs.10,00,000/- each drawn on OBC, Gandhi Nagar, Delhi; that revisionist requested the respondents to return the security amount, but they refused to return the same; that respondents falsely represented that they manufactured the said products by the name Blue Ocean International, however, respondents did not possess any manufacturing unit and products were being procured from other company/firm from Faridabad, Ballabhgarh and Coimbatore etc.; that an invoice dated 31.07.2012 of respondents proves that products were procured from Baba Engg. Works, Coimbatore; that ISI number allotted to the products demonstrated by respondents, was owned by BABA Engineering Works, Coimbatore, Tamilnadu and Super Mach Works, Ballabhgarh, Haryana; that respondents have mischievously used the ISI number of other companies/firms on their products; that M/s Blue Ocean International through respondent no.1 and 2 Naresh Garg, Gaurav Garg and Ishrar Mohd. had started supplying the products from 31.07.2012 for sale in the market and in the said financial year, total stock of Rs.25,06,013/- was supplied, out of which products worth Rs.8-9 lakh, supplied to the dealer, were returned to the respondents through their Zonal Manager Marketing Jai Bahadur Saxena, due to degrade quality; that marketing staff of respondents collected the defective products from the market as well as consideration which was to be deposited VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:50:56 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 3/3 4 with revisionist for settlement of account after adjusting the commission; that revisionist was induced to pay salary to the marketing staff of respondents with the assurance that they would supply the products equivalent to amount of salary paid to their staff; that revisionist paid salary to the tune of Rs.5,99,218/- to the marketing employees of respondents, however despite demands for return of money entrusted with respondents, they refused to return the same to revisionist; that thereafter, revisionist lodged a complaint to SHO P.S. GTB Enclave on 16.06.2014, however police did not take any action on the said complaint; that thereafter revisionist filed an application under Section 156(3) Cr. PC before the Ld. MM, but the same was rejected vide order dated 08.05.2015 and the Ld. MM treated the same as complaint case under Section 200 Cr. PC; that thereafter complainant has examined Deepak Jain as CW1; that after hearing arguments on the point of summoning of accused persons, vide impugned order, Ld. MM has dismissed the complaint filed by revisionist by holding as under :-
"The complaint of complainant to my mind does not satisfy the essential ingredients of Section 406/420/467/468/471/506/34 IPC and no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against accused persons.
In view of the foregoing discussion, clearly, no ground for proceeding to summon the accused VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:51:10 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 4/4 5 persons is made out and accordingly, the complaint is hereby dismissed."
3. The revisionist has filed the present revision petition assailing the impugned order on the following grounds, which are summarized as under:
• that impugned judgment dated 30.07.2020 is bad in law as it is perverse and illegal;
• that Ld. Ld. MM while dismissing the complaint under Section 200 Cr. PC wrongly came to the conclusion that revisionist has failed to prove its case beyond reasonable doubt;
• that Ld. Ld. MM has not appreciated the evidence led by revisionist;
• that Ld. Ld. MM has erred in not appreciating the fact that "ISI" number used by respondents was allotted to some different business establishment.
4. Arguments advanced by Ld. Counsel for revisionist as well as Ld. Counsel for respondents have been heard and record along with the impugned order has been perused.
5. Ld. Counsel for the revisionist advanced arguments on the line of grounds taken in the instant revision petition. It has been forcefully argued that impugned order is not sustainable in the eyes of law and the same is liable to be set aside. The short question involved in the present revision petition is whether the impugned order dated 30.07.2020 passed by the Ld. MM suffers from any impropriety/ illegality or not. VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:51:25 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 5/5 6
6. Before proceeding further, it is expedient to mention the relevant provisions from which this Court derives its power of revision and the same reads as under:
Section 397 Code of Criminal Procedure, 1973 Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
(2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
VINEET Digitally signed by VINEET
KUMAR
KUMAR Date: 2022.09.22 16:51:39
+0530
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(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
Section 399 Code of Criminal Procedure, 1973
399. Sessions Judge' s powers of revision. (1) In the case of any proceeding the record of which has been called for by himself, the Sessions judge may exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub- section (1), the provisions of sub- sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub- sections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of a person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by Way of revision at the instance of such person shall be entertained by the High Court or any other Court.
VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:51:57 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 7/7 8
7. It was held in the matter of Taron Mohan Vs. State and anr. 2021 SCC Online Del. 312 that:
"the scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
8. Further, Hon'ble Apex Court in Sanjaysinh Ram Rao Chavan Vs. Dattatray Gulab Rao Phalke and ors. 2015 (3) SCC 123 observed as under:
"Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:52:11 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 8/8 9 the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence."
8. It is worthwhile to mention that the revisional power of the court under Section 397 to 401 Cr. PC is not to be equated with that of an appeal. Unless the finding of the court, which is under challenge by virtue of revision, is shown to be perverse or grossly erroneous or untenable in law or where the decision is based on no material or where material facts are ignored or where the judicial discretion is exercised in an arbitrary manner, the courts may not interfere with decision in exercise of their revisional jurisdiction. Thus, normally the revisional court while exercising its jurisdiction is not expected to substitute its own view in place of the view taken by the Court, whose order's legality is under challenge.
9. In the instant case, it is worthwhile to mention that initially an application under Section 156(3) Cr. PC for registration of FIR was filed by the revisionist, which was dismissed vide order dated 08.05.2015 and the matter was fixed for pre-summoning complainant evidence. Thereafter, CW1 Deepak Jain was examined in pre-summoning evidence and the matter was fixed for arguments on the point VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:52:23 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 9/9 10 of summoning. Upon hearing the arguments, by way of a detailed order, Ld. MM had dismissed the complaint under Section 203 Cr. PC.
10. By virtue of the said complaint offences under Sections 406/420/467/468/471/506/34/120-B IPC are alleged to have been committed against the accused persons/respondents. To begin with, it is pertinent to mention that Section 406 and Section 420 IPC are antithesis of each other. It was held in the case of Wolf Gang Reim and ors. Vs. State and anr. 2012 (3) JCC 2042 by the Hon'ble Delhi High Court that a person cannot be charged with the offence of cheating (Section 420 IPC) and criminal breach of trust (406 IPC) simultaneously for the same transaction primarily because for the offence of cheating it is a pre- requisite that dishonest intention must exist at the inception of any transaction, whereas in the case of criminal breach of trust there must exist a relationship between the parties whereby one party entrusts another with property as per law and dishonest intention comes later. Suffice it to state that in the facts and circumstances of the present case, both the offences will not be made out together. Thus, during the course of arguments, Ld. Counsel for revisionist was enquired as to whether dishonest intention, if any, had occurred right at the beginning of the transaction or sometime later on. However, Ld. Counsel could not come up with a satisfactory reply in this regard.
VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:52:36 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 10/10 11
11. The present case involves an agreement/contract between two parties whereby revisionist had agreed to become C & F agent of the respondents and the said agency was to come into effect upon an initial investment/security deposit of Rs.20 lakh towards the stocks. Further, on the said amount, interest @ 12% per annum was payable to the revisionist from the date of deposit of the said amount. It was also agreed that interest payment was to be adjusted against the supplies by giving extra stock after completion of every financial year against the interest amount. The primary grievance of the revisionist is that the product sent by Blue Ocean International, the proprietorship firm, wherein respondent no.1 and 2 were proprietors/directors, was not as per specification provided prior to entering into the agreement. In addition to this, it has been alleged that upon receiving the product, complainant was shocked to know that Blue Ocean International was not a manufacturer of the product i.e. submersible and mono-set pumps and the respondents were procuring the same from other companies / manufacturing units in Faridabad and Coimbatore. It is also the grievance of the revisionist that the ISI number mentioned by the respondents on their products was not related to them and instead turned out to be that of Baba Engg. Works, Coimbatore and Supermach Works, Ballabhgarh, Faridabad. Also, it is alleged that the products were defective and of sub-standard quality.
VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:52:51 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 11/11 12
12. However, the aforesaid allegations do not attract the ingredients of Section 406 IPC by any stretch of imagination as it cannot be said that there was any entrustment of property by one party to the other. The said allegations, even if taken on the face of it, may at best constitute merely a breach of contract/agreement executed between the parties to the present case, but the same cannot be termed as criminal breach of trust, largely due to the fact that there is lack of entrustment followed by misappropriation, which is the basic requirement for an offence u/s 406 IPC.
13. Further, in the present case, ingredients of Section 420 IPC are also not attracted as the pre-requisite of dishonest intention since inception has not been alleged anywhere in the complaint. Hon'ble Supreme Court in Vijay Kumar Ghai and ors. Vs. State of West Bengal and ors. Criminal appeal No. 463 of 2022 had relied upon the judgment of Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. (2000) 4 SCC 168 wherein it was held that the distinction between mere breach of contract and cheating, which is a criminal offence, is a fine one. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:53:04 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 12/12 13 fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
14. In order to attract the ingredients of 420 IPC, it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the other party to cheat and/or to defraud the complainant right from the inception. Furthermore, it has to be prima facie established that due to such alleged act of cheating the complainant had suffered a wrongful loss and the same had resulted in wrongful gain for the other party (respondents herein). In absence of these elements, no proceeding is permissible in the eyes of law with regard to the commission of the offence punishable u/s 420 IPC. In the case in hand, perusal of the written arguments filed on behalf of revisionist clearly reveals that as a consequence of the agreement between the parties, Blue Ocean International through the respondents started supplying goods from 31.07.2012 for sale in the market by the revisionist and in the entire financial year, a total stock of Rs.25,06,013/- was supplied, which was sold by the revisionist and it has been specifically stated in the written arguments that everything was 'going good' during the said period. In view of this, it cannot be said that there was any dishonest intention on behalf of respondents since inception of the agreement between the parties. If at all, VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:53:19 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 13/13 14 something went wrong between the parties, then it would have been later on during the subsistence of the agreement between the parties after the first financial year. So, in that case, it is inexplicable as to how the offence of cheating was made out, more so, in the light of fact that no documents as such have been placed on record to even remotely suggest that wrongful loss has been caused to the complainant and wrongful gain to the respondents. In addition to this, there are no documents on record to indicate that any of the customers had returned the goods supplied by the respondents being purportedly defective. Also, neither any document has been furnished to show that goods which were supplied in the financial year starting 31.07.12 were different from what had been allegedly supplied later on nor any averments to this effect are there on record. Moreover, not even a single document pertaining to any credit note or refund given by the revisionist to anyone on account of goods being defective, has been filed on record. In fact, no notice or any communication with respect to goods being sub-standard or defective seems to have been given to the respondents. As far as the contention that Revisionist felt cheated when he came to know that supplied products were not manufactured by Blue Ocean International, but were procured from other companies is concerned, it is worthwhile to mention that the same does not have any force in view of Clause 13 of the C& F Agency agreement, wherein it has been categorically mentioned that that pumps VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:53:35 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 14/14 15 could be sourced from other brands. The said clause states as under:
"13. Industrial Proprietary Rights C & F Agency acknowledges that all the trademarks, copyrights, patents and other industrial property rights including production methods unpatented, used or embodied in or in connection with the pumps remain to be sole properties of the Blue Oceans International or the respective owner of the particular brand from whom Blue Oceans International has sourced the pumps. XXXXXXXXXXXXXXXXXXXXXXXXXX"
15. Thus, there is nothing on record to prima facie attract the provisions of S.420 IPC to the case in hand and the Ld. MM had correctly held so in this regard, while passing the impugned order.
16. Furthermore, as far as other alleged offences u/s 467/468/471/34/120B IPC are concerned, even the same are not made out by any stretch of imagination. The condition precedent for an offence under sections 467 and 471 is forgery and the requisite condition inter alia for attracting forgery is making a false document u/s 464 IPC. The definition of "false document" is a part of the definition of "forgery" and both must be read together. A person is said to have made a `false document' if,
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:59:03 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 15/15 16
(iii) he obtained a document by practicing deception, or from a person not in control of his senses.
17. The facts of case in hand does not fit into any of the three situations mentioned above. In that case, if what is executed is not a false document, then there can't be any forgery and importantly, if there is no forgery, then neither Section 467 nor Section 471 of the Indian Penal Code are attracted. Accordingly, in view of above discussion, S.468 IPC i.e. Forgery for the purpose of cheating is also not made out. So, no interference in the impugned order is required on this aspect as well. Also, the revisionist does not have any locus to complain about the purported usage of someone else's ISI number by the respondents. It is for the actual owner of the ISI number to take steps, in case of any infringement. Thus, the contention raised by the revisionist in this regard also does not have any force.
18. Last but not the least, regarding allegations u/s 506 IPC, it is important to mention that the Ld. MM has correctly held that the same are non-specific, vague and bald allegations with nothing mentioned in either the complaint or the deposition of revisionist as CW1 as to who extended the threats to the revisionist/complainant, if any. Thus, even the offence under Section.506 IPC is not made out.
19. In the end, in order to sum up, reliance can be placed on the judgment of M/S Indian Oil Corporation vs M/S NEPC India Ltd., & Ors Crim Appeal No. 834 of 2002, VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:59:28 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 16/16 17 wherein it was held that:
"It is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors.There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
20. Also, in G. Sagar Suri vs. State of UP [2000 (2) SCC 636] the Hon'ble Court observed as under:
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to exercise a great deal of caution."
21. Therefore, considering the facts and circumstances of the case in hand, suffice it to state that Ld. MM by not summoning the respondents has not committed any error in law. Further, Ld. MM seems to have passed a reasoned order thereby dismissing the complaint under Section 203 Cr. PC. Thus, having observed above and in the light of the VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.09.22 16:59:44 +0530 Cr. Rev. No. 107/2020 Shree Jee Traders Vs. Naresh Garg and ors. Page No. 17/17 18 proposition of law cited therein, this court is of the view that Ld. MM has exercised his discretion judiciously and the impugned order does not suffer from any illegality or impropriety and is not perverse so as to warrant any interference or substitution of views of this court in place of finding given by the Ld. MM.
22. Accordingly, the revision petition stands dismissed. A Copy of this order along with TCR be sent to the court of Ld. MM concerned.
Revision file be consigned to record room.
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2022.09.22
17:00:02 +0530
Announced in the open (Vineet Kumar)
Court on 22.09.2022 ASJ-02/E-COURT
Shahdara/KKD/Delhi.
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