Gujarat High Court
Smt. Meeta Jain vs State Of Gujarat on 11 July, 1997
Equivalent citations: (1998)2GLR137
JUDGMENT N.J. Pandya, J.
1. This application is filed by the accused of Criminal Case No. 237 of 1996 of the Court of JMFC, Pardi, Dist. Bulsar. The complaint is filed by respondent no. 2 alleging that the petitioner is guilty of criminal breach of Trust with regard to consignment of garbage bags.
2. It seems that the petitioner and the respondent no. 2 had entered into a commercial transaction and as per the orders placed by the petitioner, respondent no. 2 was to manufacture garbage bags of plastic which were to be exported to Dubai. Accordingly, bags were kept ready of the weight of about 12500 kgs. valuing Rs. 4,68,405/- by respondent no. 2. It was to be inspected and certified and after it being so done, against a cheque payable on the 7th day, the quantity was to be delivered for being despatched to Dubai. However, alleging that signature of two persons is required on a cheque, and though the articles were ready for despatch, cheque was not given and relying on the promise said to have been given by the petitioner on her behalf by her agent, the custom authorities were called. The said quantity of bags was stuffed in a container for being shifted from Bombay to Dubai. In fact, the despatch was made from Bombay and it finally landed up at Sharjah and yet, respondent no. 2 has not received the payment. Saying that this amounts to breach of trust, as defined under Sec. 405, punishable under Sec. 406 Indian Penal Code, complaint came to be filed. The petitioner came before the Court saying that it is a purely commercial transaction and if at all there be any dispute, it would give rise to a civil dispute and respondent no. 2 has abused the process of Court by giving it a colour and shape of a criminal offence and has obtained unsupportable orders and therefore, it be quashed.
2. Rule came to be issued on the very first day on 7-2-1997 and further proceedings as prayed for were stayed. In response to the service of Rule, an elaborate reply came to be filed by respondent no. 2. Strictly speaking, when one goes through the reply, it is quite clear that no offence under Sec. 406 is made out. The stuffing in the container is done at the factory of respondent no. 2 and after having been cleared by the custom authorities and loaded in the container, bill of lading was obtained by respondent no. 2. The Bill of Lading never left the hands of respondent no.2 and finally, when the container landed up at Sharjah, according to the Rules of that Country, the goods had to be cleared, otherwise, they would have been confiscated. Therefore, respondent no. 2 arranged with his clearing agent to clear the goods unloaded and stored in a warehouse at Sharjah. This is to be found in para 4 at page 58.
3. In the course of the argument, L.A. Mr. Malkan appearing for respondent no.2 was specifically asked about the manner in which the goods were handled right from the time that they were loaded upto the point of time where they came to be stored in the warehouses at Sharjah. One of the partners of the firm i.e. brother of respondent no.2 was present and after obtaining instructions from him, Mr. Malkan made a statement, which was recorded yesterday in his presence and it is kept on record. Taking the said statement, para 4 and the accompanying documents together, it is quite clear that the goods have never left the domain of the original complainant, respondent no. 2.
4. For making an offence under Sec. 406, one has to turn to Sec. 405 and there it could be found that unless the entrustment is made or shown to have been established prima facie or dominion over the property having been made over to the accused, there is no question of it amounting to a breach of trust, muchless, therefore, there could be any possibility of dishonest misappropriation or conversion and therefore, there is no question of there being any offence under Sec. 406 IPC. The Bill of Lading, Proforma Invoice and other related documents produced along with the affidavit in reply, sworn to by respondent no.2 on 29th April 1997, clearly indicate that the offence under Sec. 406 is not made out.
5. This prompted the learned Advocate Mr. Malkani to change the stand and tried to make out a case under Sec. 418, 419 or 420 of IPC. He was right in submitting that merely because a particular section is mentioned in a complaint, the complainant cannot be precluded from urging a case that offence, though not made out under the section mentioned in the complaint, still has been committed under different sections of the code, provided, there are facts and circumstances, born out from the complaint itself.
6. He was, therefore, prompted to point out whether the offence under Secs. 418, 419, or 420 is at all made out. For this, ofcourse, his attention was drawn and he was fully aware of the fact that definition of Sec. 415 will have first to be seen. On the basis of the contents of the complaint, as well as the documents produced along with the affidavit in reply when Mr. Malkani tried to make out a case of cheating punishable under any of the aforesaid provisions of IPC for the reasons stated earlier, his efforts failed. There is no question of the respondent no. 2 having been induced or deceived to deliver the goods to the petitioner. There is no question of any physical delivery at all because the goods have in fact been despatched and admittedly they are lying at Sharjah. The Bill of Lading, at all material point of time, reamined with respondent no. 2 and no doubt, at the time of clearance, the original bill was handed over to his agent at Sharjah. He received and stored the goods in his warehouse obviously for and on behalf of respondent no. 2. Physically and constructively also therefore, the property remained with respondent no. 2. In absence of payment and delivery, there is no qeustion of property having ever passed on to the petitioner so that even remotely could it be suggested that there is an offence of cheating.
7. In either event, it is obvious that the offence is not at all made out. As if this is not enough, in para 3 of the affidavit in reply, averments made in the petition as to duty draw back has been dealt with and in no uncertain terms, respondent no. 2 has admitted to have received an amount of Rs. 1,91,250/- as duty draw back against his entitlement of Rs. 2,12,500/-. This was the reason why he had issued proforma invoice and had claimed the duty draw back to the tune of Rs. 1,91,250/- as he was in dire necessity of funds. Thus, the fact remains that without delivering the goods to the petitioner, without in any manner passing the property in the goods to the petitioner and all the while retaining either physical possession of the goods or dominion over the same and in any case, title always having remained with respondent no. 2, in the aforesaid background, when the goods are lying at Sharjah, and considering the submission made on behalf of the petitioner in the petition itself and in the course of the argument by the learned Advocate for the petitioner Mr. B.J. Shelat, it is crystal clear that neither offence under Sec. 406 as alleged in the complaint is made out, nor an offence of cheating as sought to be made out in the course of the argument, is made out.
8. Mr. Malkan, in the course of his submission, rightly drew the attention of the Court that powers under Sec. 482 are to be sparingly exercised and once criminal law is set into motion, its course should not be interrupted. Agreeing with this submission, when one finds that the offence itself is not disclosed, it can be said to be of those rare cases where power under Sec. 482 has to be exercised. Mr. Malkani, in support of his submissoin has cited AIR 1992 SC 604 (State of Haryana vs. Bhajanlal) where it has been pointed out that where allegations in the complaint did constitute cognizable offence justifying registration of a case and investigation thereon, and did not fall in any of the categories of cases enumerated above, calling for exercise of extra ordinary powers or inherent power, quashing of FIR was not justified. The cases enumerated in above referred petition, are, as many as 7, to be found in para 108 of the judgment and the very first category is that of a complaint where the averments thereof, even if taken at their face value and accepted in their entirety, were not prima facie constituted any offence. The Hon'ble Supreme Court, in that very judgment, stated that it would be a very meritted case to exercise the inherent power under Sec. 482 and quash the complaint. That exactly being the position here, the petition has to be allowed. Accordingly, the petition is allowed. The complaint filed by respondent no. 2 is quashed. Rule is made absolute.