Bombay High Court
Brajo Sunder S/O Krishnapad vs The State Of Maharashtra on 9 September, 2008
Author: V.R.Kingaonkar
Bench: V.R.Kingaonkar
(1)
REPORTED
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO.1692 OF 2006.
Brajo Sunder S/o Krishnapad
Banerjee, Age 64 years,
Occ.Business, R/o 23/50,
Gandharv Colony, Dhule Road,
Jalgaon, Dist. Jalgaon. ... Applicant.
Versus
1. The State of Maharashtra
2. Dr.Champalal Phulchand
Desarda, Age 65 years, Occ.
Business, R/o 28, Parason
House/Venkatesh Nagar,
Aurangabad. ... Respondents.
...
Mr.K.C.Sant, advocate for the applicant.
Mr.N.H.Borade, A.P.P. for Respondent No.1.
Mr.D.V.Soman, advocate for Respondent No.2.
...
CORAM : V.R.KINGAONKAR,J.
Reserved on :27.08.2008.
Pronounced on:09.09.2008.
JUDGMENT
1. This is an application filed U/s 482 of the Cr.P.C. for quashing proceedings of Criminal case arising out of Crime No.I-33/2005, registered at Bidkin Police Station for offences U/s 406, and 420 of the I.P.C.
::: Downloaded on - 09/06/2013 13:50:15 ::: (2)2. Admittedly, there took place agreements between Dr.Champalal Desarda and applicant Brajo Sunder. The former owns a horticultural garden in field Gat No.79 at village Bidkin, styled as "Madhur Keshar Faludhyan Kendra", whereas the latter runs a proprietary business styled as "M/s India Seeds and Horticultural Firm, Howrah (Calcutta)". By mutual agreements it was agreed that the applicant would supply saplings of Sandal wood plants. It was agreed that the applicant would supply saplings of high quality mango plants of 'Amrapali' variety, and that of Mohogani plants. The parties entered into three separate agreements. There is no dispute about the fact that as per terms of the agreement, the applicant was supposed to develop the orchard and garden. He agreed to supervise the cultivation of the plants and provide for consultation to take care of the plants. He represented that the Amrapali variety of mango plants would give yield after couple of years to the extent of part and after five (5) years of at least 500 Kg. per tree. He also represented that the Mohogani plants would be fully grown after 25/30 years. It was agreed that as and when the applicant or his representative would visit the orchard/garden, he or his representative would ::: Downloaded on - 09/06/2013 13:50:15 ::: (3) enter the observations and details of visit in the visit book which was to be maintained by the farm owner i.e. Dr.Champalal Desarda. It was agreed further that in case the plant will not bear fruits then the applicant would replace the same at his own costs and would cultivate it. He would not, however, be liable to pay any compensation. The terms of the agreement dated 6.6.2001, 3l.5.2001 and 4.6.2001 were reduced into writing as per mutual understanding of the parties.
3. There ig is controversy as regards who committed breach of the terms of the agreements. The applicant alleged that Dr.Champalal Desarda did not perform his part of the agreement. He filed criminal proceedings against Dr.Champalal Desarda in the Court at Howrah. Thereafter, employee of Dr.Champalal Desarda lodged F.I.R. on 27.3.2005 against the applicant at Bidkin Police Station. The F.I.R.
lodged by complainant Vivek, who claims to be liaison Officer of Dr.Champalal Desarda, purports to show that the applicant met his Master in September 2001 and represented that he deals in best quality saplings. He canvassed utility of best quality saplings and also showed a video film demonstration to explain how wood plantation would give better ::: Downloaded on - 09/06/2013 13:50:15 ::: (4) yield and benefit. He assured that the horticultural farm owner would get plenty of income and there will be no loss. It was further alleged that Dr.Champalal Desarda purchased saplings of sandal wood plants, Amrapali variety mango plants and saplings of Mohogani wood plants. It was averred in the F.I.R.
that the applicant visited horticultural farm from time to time and collected amount of Rs.2,00,000/-
(Rupees two lacs) from the owner - Dr.Champalal
Desarda. Allegedly, the applicant subsequently did
not keep the promise and stopped visits to the
horticultural
farm. The saplings provided by him
were found to be of inferior quality. The yield of
mango plants was also not as per the assurance given
by him. Consequently, it was alleged that the
applicant committed offence of criminal breach of
trust and cheating.
4. The applicant was arrested in connection
with Crime No.I-33/2005, registered on the basis of
the above F.I.R. lodged by said Vivek. He was
produced before the learned Judicial Magistrate,
Paithan. The learned Judicial Magistrate granted
Police custody remand as per request of the
Investigating Officer. The Police custody remand was
extended further till 28.3.2006. The Investigating
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Officer, however, submitted a report dated 24.3.2006
to the effect that the Police custody remand was no
more needed thereafter. The applicant was then
remanded to Magisterial custody till 5.4.2006. The Police submitted a report dated 28.6.2006 (Exh.E-1) U/s 169 of the Cr.P.C.. The Police report shows that during investigation it was found that the matter relates to Civil dispute between the parties. The Police came to the conclusion that no offence, of Criminal breach of trust or cheating, was revealed from the investigation papers, and hence, the applicant was sought to be discharged. An intimation of such final report U/s 169 of the Cr.P.C. was given to the complainant. It appears that the complainant filed Protest Petition which is at Exh.1 (RCC No.261/06).
5. The learned Judicial Magistrate considered "C" summary report filed by the Police and passed a brief order as follows :
" After evaluating the evidence collected by the Investigating Agency, as there are sufficient ground to proceed against the accused person. Hence, I disagree with the report."
::: Downloaded on - 09/06/2013 13:50:15 ::: (6)It appears that thereafter the Criminal proceedings were instituted against the applicant.
6. The applicant impugns the order rendered by the learned Judicial Magistrate and the Criminal proceedings instituted pursuant to the same. The applicant alleges that the F.I.R. lodged by so-called liaison Officer - Vivek is malafide and was given just to counter the Criminal proceedings initiated by him in the Court of Chief Judicial Magistrate at Howrah.
He asserts that the entire allegation in the complaint would not make out any case within the ambit of Section 415 of the I.P.C. He asserts that the allegation in the complaint to the effect that 50% of the plants were of inferior quality are quite vague and moreover, there could be no Criminal intention at the inception when at least 50% of them admittedly are of best quality. He asserts that the learned Judicial Magistrate recorded disagreement with the Police report without assigning any tangible reason and arbitrarily proceeded to take cognizance of the offence without there being substratum to infer his complicity. He urged, therefore, to quash the Criminal proceedings.
::: Downloaded on - 09/06/2013 13:50:15 ::: (7)7. The Respondent No.2 - Dr.Champalal Desarda resisted the application. He has filed affidavit-in-reply. He alleges that the applicant does not possess licence to deal in the business of seedlings. He asserts that the applicant played fraud on a large number of agriculturists/horticulturists.
He asserts that the modus operandi of the applicant was that he use to allure the customers to purchase plants as per terms of the agreement. He use to collect huge amounts from the customers and thereafter use to gradually withdraw himself from the activity of development of the horticulture garden or orchard.
The applicant use to shift his head office and branch offices. He use to supply cheap and inferior saplings. He grabbed huge amount with ill-intention to dupe and hence, the impugned order of the learned Magistrate is quite sustainable. Consequently, he urged to dismiss the application.
8. Mr.Sant, would submit that the entire dispute pertains to Civil liabilities arising out of the contracts. He would submit that in respect of payments made under the terms of agreements, there could no Criminal breach of trust because such amounts were not entrusted with a view to get back the same or for any specific purpose other than due performance of ::: Downloaded on - 09/06/2013 13:50:15 ::: (8) the terms of the agreements. He would submit that for the purpose of Section 415 of the I.P.C. it ought to be shown that at the inception there was dishonest intention present in the mind of the applicant. He would submit that after five (5) years period there may be shortcoming in respect of yield which is not as per expectation of Respondent No.2 but it does not per se imply any ingredients of offence of cheating. He would further submit that the learned Judicial Magistrate could not have just shown his disagreement with the report of the Investigating Officer without giving reasons.
ig He argued that the impugned order and the Criminal proceedings initiated pursuant thereto would amount to abuse of the process of the Court.
Per contra, Mr.Soman, would submit that the applicant is involved in similar kind of crimes registered against him at instance of large number of customers and it has become his habit to commit the fraud. He would submit that the applicant could not deal in seedlings without having license. He urged to dismiss the application.
9. Before I proceed to embark upon examination of merits, it is worthy to be noted that the Protest Petition filed by Liaison Officer of the Respondent No.2 reveals that the applicant supplied 50% of the ::: Downloaded on - 09/06/2013 13:50:15 ::: (9) plants as per the terms of the agreement and agreed to supply the remaining quantity within six (6) months.
It is asserted that the applicant supplied inferior and cheap quality of the seedlings and did not provide service for a term of five (5) years as per the agreement. The Protest Petition further shows that after institution of the complaint case by the applicant and the counter F.I.R. there took place certain compromise between the parties. The relevant averments made in paras 15 and 16 of the Protest Petition are rather significant and hence, are reproduced for ready reference.
"15. The complainant submits that though the accused had compromised the matter, he has again not kept up his commitments. The accused has filed contempt petition against the I.O. also in Trial Court at Calcutta. It is pertinent to note that on 3 occasions when the accused was produced by the police before this Honourable Court, the accused has not made any complaint of ill-treatment at the hands of the police.
It is very evidence that, the police have acted under pressure and allowed the ::: Downloaded on - 09/06/2013 13:50:15 ::: (10) accused to go scot-free from the clutches of law.
16. The complainant submits that in the month of March, 2006, the accused telephoned Dr.Desarda and expressed his willingness to perform his part of obligations as per the agreements and requested to withdraw the complaint i.e. F.I.R. No.033-2005. The complainant submits that there was a notarised agreement ig between the accused and Dr.Desarda as per which the accused agreed to supply the short supplied quantities and replace the died plants.
However, the accused once again cheated
Dr.Desarda and did not perform his
obligation and on the contrary made false allegation against the Police also."
10. The learned Judicial Magistrate did not consider the above averments made in the Protest Petition. There is absolutely no reference to the averments in the Protest Petition and consideration of the record by the learned Judicial Magistrate when he proceeded to dis-agree with the report filed by the ::: Downloaded on - 09/06/2013 13:50:15 ::: (11) Investigating Officer. The averments in para 15 would make it manifest that the parties had arrived at terms of settlement. The grievance was that thereafter the applicant did not keep his commitment. In other words, it is conspicuous that the parties agreed to abandon the allegations regarding commission of offences by each other. It is also explicit that somewhere in March 2006, the applicant again expressed willingness to perform his part of the contracts. The F.I.R. does not show that any survey was conducted by an expert to say that 50% of the saplings were of inferior quality.
ig There is probability that the
applicant committed negligence in the performance of
his part of the terms of the agreements and thereafter the parties were on cross terms. It is also probable that the applicant lost his interest due to nonfulfillment of the terms of the agreement by the Respondent No.2. This Court is not the fact finding Court and as such no opinion as regards either probability can be expressed from the available record. What emerges from the record is that the dispute between the parties is of Civil nature. It arose due to breach of the terms of the agreements settled between them.
11. True, the applicant does not have any ::: Downloaded on - 09/06/2013 13:50:15 ::: (12) license to deal in the business of seedlings/saplings.
Mr.Soman, would invite my attention to the provisions of Section 2(11)(iv) alongwith the provisions of the Seeds (Control) Order 1983. I find it difficult to countenance contention of Mr.Soman that the applicant, prima facie, has committed any offence, punishable U/s 19 of the Seeds Act, 1966. The license is required under the Seeds (Control) Order 1983, but the violation of the same is not punishable under the provisions of Section 19 of the Seeds Act, 1966. The Seeds (Control) Order 1983 is issued under Section 3 of the Essential Commodities Act. Obviously, on the basis of a private complaint offence regarding violation of the Seeds (Control) Order 1983, cannot be taken cognizance of. Nor any such allegation is made in the F.I.R. The learned Judicial Magistrate also did not take cognizance of the offence under provisions of the Seeds Act, 1966. Consequently, I find that contention of Mr.Soman, in this behalf, is besides the scope of the present matter. He further submits that large number of other customers made similar complaints against the applicant. The similar complaints by other customers do not bolster the case of the Respondent No.2. For the purpose of taking cognizance of offence, a prima facie case ought to exist. The allegations in the F.I.R. need to be ::: Downloaded on - 09/06/2013 13:50:15 ::: (13) considered on the face value thereof. If it can be said that from such allegations prima facie material is available to proceed against the accused then the learned Magistrate would be justified in taking cognizance on the basis of such F.I.R.
12. The fact situation in the present case would make it explicit that the employee of the Respondent No.2 lodged the F.I.R. without specific material to infer existence of dishonest intention on part of the applicant at the very inception. The offence of cheating is defined U/s 415 of the I.P.C. The F.I.R.
does not show existence of fraudulent intention since inception of the transactions between the parties.
The Apex Court in "Inder Mohan Goswami and another Vs. State of Uttaranchal and others" 2007 AIR SCW 6679, observed in para 41 of its judgment :-
"To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning."::: Downloaded on - 09/06/2013 13:50:15 ::: (14)
The Apex Court observed that the Court must ensure that Criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise the accused. Similarly, in "Minu Kumari and another Vs. State of Bihar and others" AIR 2006 Supreme Court 1937 and "Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others" AIR 1983 Supreme Court 67, the Apex Court succinctly explained the scope of Section 482 of the Cr.P.C. The Apex Court in "M/s Kunstocom Electronics (I) Pvt. Ltd.
ig Vs. Gilt Pack Ltd. and another" AIR 2002 Supreme Court 739, held that in case of Civil dispute, the offence would not come within ambit of Section 415 of the I.P.C. and the process was liable to be quashed.
13. Mr.Soman, seeks to rely on "Alpic Finance Limited Vs. P.Sadasivan And Another" A.I.R. 2001 Supreme Court 1226, "Shri Vijay Kumar And others Vs. Union of India and others" A.I.R. 1998 Supreme Court 2062 and a judgment of Division Bench of this Court in "Criminal Writ Petition No.415/2003 (Coram :
J.N.Patel and S.T.Kharche, JJ.) decided on 6.10.2004".
There are cases and cases. In "Alpic Finance Limited"
(supra), the Apex Court held that merely because an ::: Downloaded on - 09/06/2013 13:50:15 ::: (15) act has a civil profile is not sufficient to denude it of its criminal outfit. It is not necessary to elaborately to deal with the other case law cited by Mr.Soman. Suffice it to say that the material on record, including the averments in the F.I.R., do not bring on surface of the record any substratum to infer presence of dishonest intention of the applicant at the inception of the transactions between him and the Respondent No.2, nor the money paid to him in pursuance to the terms of the agreement can be regarded as "entrustment". The averments in the F.I.R. are not germane to constitution of any Criminal offence nor the learned Judicial Magistrate ascribed any valid reasons to proceed against the applicant. His simple disagreement with the Police report cannot be foundation to proceed against the applicant without there being any tangible reason recorded by him. The impugned order is arbitrary and amounts to colourable exercise of the judicial power.
Under these circumstances, I have no hesitation in holding that the impugned order and the Criminal proceedings amount to abuse of the process of the Court.
14. For the reasons aforestated, the application is allowed. The impugned order and the Criminal ::: Downloaded on - 09/06/2013 13:50:15 ::: (16) proceedings instituted in pursuance to Crime No.I-33/2005 are hereby quashed. The bail bonds of the applicant, if any, be deemed as cancelled as he stands discharged.
(V.R.KINGAONKAR,J.) Authenticated Copy (Pvt.Secy. to Hon'ble Judge) asp/Crapp169206 ::: Downloaded on - 09/06/2013 13:50:15 :::