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3. Learned counsel for the applicant has mainly argued that the offences, which have been mentioned above, had been constituted against the accused-applicant because the material had only been transported in the ship of the applicant, which was about 23 metric tons of copper scrap. No entrustment of the said property was made to him. The matter is of civil nature. The opposite party no. 2 has also filed a claim petition for making good the loss of the goods. Further it was argued that the proceedings are barred by section 468 Cr.P.C. In criminal case no vicarious liability can be imposed against the accused applicant. The applicant was not Indian national. On the date of occurrence, the company of the applicant was not registered in India and even the address of the company of the applicant is shown wrong. The opposite party no. 2 has not made the company of the applicant as a party in this case but has only made the President of the said company to be an accused, which is illegal. Attention was drawn to page 24 of the paper book, which indicates that the same was bill of lading. The goods to be transported were in a sealed container, hence the applicant had no knowledge as to what was kept in them. On 26.9.2009 the ship had moved and had reached its destination on 29.9.2009 and on that date the opposite party no. 2 had gone for collecting the consignment then he came to know that the copper, which was transported, was missing. The complaint has been filed about five years after the occurrence, hence the same is barred by provision of section 468 Cr.P.C. The crime was not committed in India rather the same was committed in the ship. The jurisdiction of Kanpur Nagar has been falsely made in the present case and accordingly it is prayed that the criminal proceedings against the applicant need to be quashed. It was also argued that the bill of lading would indicate that the responsibility of the applicant was confined only upto custom yard to custom yard, which is indicated in the said bill. Therefore, if any of the goods were found less in weight, number and quantity after it had gone out of the custom yard, the accused-applicant cannot be treated to be responsible for the same. When a question was put to the learned counsel for the applicant as to how he was representing the applicant, who is stated to be foreign national, he replied that vakalatnama was got signed and obtained through courier from abroad. He has also relied upon the following case laws:

5. In order to appreciate the controversy involved in the present case, it would be appropriate to refer in brief the facts of the case, which are as follows.

6. The complaint was made by the opposite party no. 2 i.e. M/s G.K. Traders through its Proprietor Gopi Krishan Gupta against the accused-applicant (accused no. 3) in the said complaint and two others namely, Sudhir Shukla and Saham Siddiqui alleging therein that the firm of the complainant deals in wholesale business of scrap. The co-accused Sudhir Shukla was Computer Operator in the said firm, who used to deal in communication and business letters in respect of the sale and purchase of scrap on behalf of firm with other traders. The other co-accused Saham Siddiqui was friend of the co-accused Sudhir Shukla who used to come to meet him in the office. The co-accused Saham Siddiqui is expert in establishing contact in foreign countries with respect to business of scrap and he had inspired the complainant that if he begins the business of scrap with the company of accused-applicant namely K.M.T.C. Ship Company, he would earn huge profits. The said company does transportation work in entire world by reaching goods from one country to another and the said company was also registered in India having its office at Mumbai. Since the said company of the accused-applicant was registered in India, proceedings under section 188 (B) Cr.P.C against it can be drawn. The co-accused Sudhir Shukla and Saham Siddiqui in collusion with each other gave proposal to the opposite party no. 2 to purchase copper scrap from the First International Company Ltd., Seoul, Korea whose owner was Jeson Kim, who had copper scrap in large quantity. The co-accused Saham Siddiqui had sent e-mail in this regard to the complainant believing which, he gave consent for the said business and on 22.07.2009 co-accused Sudhir Shukla has sent e-mail to Jeson Kim indicating therein that the complainant wanted 99.9% pure copper and offered him 3500/- US$ per ton, on which it was agreed that at the rate of 3600/-US$ per ton copper scrap would be purchased from Manila Philippines and its sale contract was sent through e-mail in which the terms and conditions were stipulated that not less than 100 metric tons material would be purchased and that of the total material, 20% amount would have to be deposited in the account of Jeson Kim. Thus, the co-accused Sudhir Shukla and Saham Siddiqui after having taken the complainant into confidence, reached Manila on 25.8.2009 and inspected the copper on 27.8.2009 and sent photograph through e-mail on 28.8.2009. The contract for sale of 20 metric tons was agreed upon and 20% amount i.e. 14400/- US$ were to be deposited in the bank of Korea and Rs.30,000/- was to be spent as other expenditure, which were requested to be sent by the opposite party no.2. The opposite party no.2/complainant accordingly deposited 14400/- US$ on 31.8.2009 as per terms and conditions. The co-accused Sudhir Shukla and Saham Siddiqui gave 600/- US$ on 4.9.2009 and 900/- US$ on 20.9.2009 to Jeson Kim in cash, which were sent by the firm of the complainant and remaining amount i.e. 80% of the copper scrap was also paid by way of advance to Jeson Kim. Thereafter, the copper scrap was loaded in the containers in the presence of co-accused Sudhir Shukla and Saham Siddiqui, the weight of which was found to be 23 metric tons, hence the total amount of the said 23 metric tons copper scrap came to be of 84300/- US$ out of which, 14400/- US$ on 31.8.2009 and 1500/- US$ according to the terms and conditions of paragraph nos. 10 and 11 and remaining 6800/- US$ were deposited in the account of Jeson Kim on 19.9.2009. Thus, the whole price of the copper scrap was paid by the complainant where-after the co-accused Sudhir Shukla and Saham Siddiqui had loaded the said scrap in containers and sealed & packed them. The applicant-accused had also affixed his seal on the said copper being seal no. KMP1212651 and thereafter the container of the copper scrap which was loaded in the ship of the accused-applicant was handed over to be reached at Kanpur address. On 26.9.2009 the copper container reached Mumbai and then the accused-applicant along with other co-accused told the opposite party no. 2 to get the delivery from Mumbai because if the said container was allowed to be kept there, hourly charges would have to be paid. In pursuance of that, the representative of the opposite party no. 2 namely, Sachin Gupta reached Mumbai and after having paid custom duty assessed on the weight of the container, bill of which is article-14, on weighing the said material, in place of 23 metric tons copper, the same turned out to be 6 metric tons. At this, on 3.11.2009 in the presence of representative of the accused-applicant, Insurance Surveyor, Custom Officer and the representative of the opposite party no. 2, seal of container was opened, out of which, in place of 23 metric tons copper scrap, only four bags of rubbish were taken out. Therefore, the accused-applicant along with other co-accused had caused loss to the complainant/opposite party no. 2 of having swindled of 84300/ US$, which would be equivalent to Rs.41,30,000/- in Indian currency. Apart from this, expenditure incurred by the accused-applicant nos. 1 and 2 Sudhir Shukla and Saham Siddiqui in having gone to Manila and their stay in hotel etc. was also to be borne by the opposite party no. 2 in addition to the rent of shipping company. Thus, over and above, the loss of Rs.10.00 lacs was also caused to the complainant. The opposite party no. 2 made various trips to Mumbai and Kanpur Nagar in order to get the copper scrap and also continued to make correspondence with the accused persons, therefore, delay had occurred in filing the complaint, which was not deliberate, hence the complaint is not time barred.

9. In rebuttal, a counter affidavit is filed on behalf of the opposite party no. 2 Gopi Krishan Gupta. It has been mentioned in it that the applicant had not mentioned the official address of the company situated in India in authority letter i.e. Annexure-1 of the affidavit. The applicant had affixed its seal copper number KMT 1212651 on the container and in the said bill of lading the gross weight of the container was shown 23,000 kilogram (23.000 metric tons) Copper Millberry Scrap (99% purity of Copper). The representative of the opposite party no. 2 had reached Mumbai for fulfillment and observing necessary formalities for release of the container. As per the bill of lading dated 14.9.2009, it was the obligation of the applicant to deliver and handover the consigned container to the consignee i.e. opposite party no. 2 at I.C.D. Kanpur, India. On weighing the container it was only approximately 06 metric tons instead of 23.00 metric tons. 1*20 FCL container number GLDU-52256399 STC net weight 23,000 kilogram Copper Millberry Scrap after discharge on 26.9.2009 from M.V. "Mare Internum" at J.N. Port Nhava Sheva was shifted to the nominated Continental Warehousing Corporation, CFS, Nhava Sheva, on weighbridge inside the CFS noted net weight 4,720 kilograms, hence the joint survey of the said container was made. Photocopy of the public weighing duplicate ticket dated 28.10.2009 issued by Continental Warehousing Corporation Limited, Navi Mumbai is annexed as Annexure-2. In pursuance of the examination order dated 03.11.20009 passed by Indian Customs EDI System- Imports (ICES/I) JNPT, Nhava Sheva Mumbai-400 707 it is found "------ bags found in the cabins containing with some rusty iron bags and sand-----." After the examination of container by the Custom Authority the joint survey of the aforesaid container was conducted on 03.11.2009 in the presence of six person, namely, (i) Mr. CRN Reddy of M/s. Scan Container Terminals Pvt. Ltd. (Surveyor appointed by CFS), (ii) Mr. Prashant Mathre of M/s. Pinnacle Marine Services (P) Ltd., (Surveyor appointed by Vessel Agents), (iii) Mr. Sachin Gupta for M/s. G.K. Traders (Consignee representative), (iv) Mr. P.K. Sinha, Appraiser Customs, (v) Mr. Bhaskar of M/s. Wilson Surveyors and Adjusters Pvt. Ltd., (vi) Pankaj Shipping and Transport Company and the report of joint survey specifically stated that " the seals were cut open in our presence when found 04 nos. jumbo bags, containing rusty iron wires and sand. All the nuts, locking the bolts from inside the door were sealed with a sealant. Only the sealant of the nut locking bolts with tampering marks of catch on door handle retainers of the right door were found resealed and repainted near the nut bolts." The Scan Container Terminals in its joint survey report dated 03.11.2009 stated that "the seals were cut open in our presence, then found 04 nos. jumbo bags out of 21 jumbo bags (23000 kilograms) containing rusty iron wires and sand. All the nuts bolts locking the bolts inside the door were sealed with sealant. On the sealant of the nuts locking bolts with tampering marks on door handle retainers of the right door were found resealant and repaint near the nut bolts". Further it is mentioned that joint survey report dated 04.09.2009 submitted by Wilson Surveyors and Adjusters Private Limited, Mumbai also stated that "the seals were cut open in our presence when found only 04 nos. jumbo bags containing rusty iron wires and sand. One bag was found with the label marked with a Exporter name as Proctor and Gamble Distributing Co. Manila Philippines and an empty sachet of Palmolive Shampoo marked as Mukati City, Philippines in another bag. All the ''nuts' locking the bolts from inside the door were sealed with a sealant. Only the sealant of the nut locking bolts with tampering marks of the catch and door handle retainers of the right door were found resealed and repainted near the nut". The Pinnale Marine Services Private Ltd. Mumbai in its joint survey report dated 09.11.2009 stated that "the seals were cut open in our presence when found only 04 nos. jumbo bags containing rusty iron wires and sand. One bag was found with the label marked with a Exporter name as Proctor and Gamble Distributing Co. Manila Philippines and an empty sachet of Palmolive Shampoo marked as Mukati City, Philippines in another bag. All the ''nuts' locking the bolts from inside the door were sealed with a sealant. Only the sealant of the nut locking bolts with tampering marks of the catch and door handle retainers of the right door were found resealed and repainted near the nut". Photocopies of these reports are annexed as Annexures-3, 4, 5 and 6. On the discharge of the aforesaid container on 26.9.2009 the weight of the container was found much less than its actual weight on which the joint survey of the aforesaid container has been conducted and the fraud committed by the applicant along with the other accused persons with the opposite party no. 2 has been revealed. The applicant had received huge amount of 84,300 US$ (Rs.41,30,000/-INR) from the opposite party no. 2 for the sake of 23000 kilograms of Copper Millberry Scrap (99% purity of copper) but the applicant instead of supplying the same, supplied 04 nos. jumbo bags containing rusty iron wires and sand which amounts to cheating criminal breach of trust. In order to prove his complaint, the complainant and witnesses were examined before the court of A.C.M.M.-VIII, Kanpur Nagar which clearly makes out an offence to have been committed under sections 406 and 420 IPC. The applicant without appearing and seeking bail in Complaint Case NO.4182 of 2014, has presented the application dated 04.06.2015 for cancellation of bailable warrant. The cited case laws are not related and applicable to the present case. There is no lacuna in the summoning order. Further, it is mentioned that normal wear and tear does not mean that it would cover the lost of 23,0000 kilograms of goods i.e Copper Millberry Scrap (99% purity of copper) from the aforesaid consigned container which was shipped by the applicant. The description and quantity of goods mentioned in the bill of lading dated 14.09.2009 were not found in the consigned container because of which joint survey of the consigned container had been made. Article III (4) of the Schedule i.e. Rules relating to Bill of Lading in the Indian Carriage of Goods by Sea Act, 1925, it is provided that a bill of lading shall be prima-facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3(a), (b) and (c) and Article III (3) states that after receiving the goods into his charge, the carrier or the master or agent of the carrier, shall on demand of the shipper, issue to the shipper a bill of lading showing among other things i.e. (a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on cases coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage; (b) either the number of package or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper; (c) the apparent order and condition of the goods. It is further mentioned that one year limitation is not applicable in criminal cases. The act of the applicant and other co-accused attract criminal liability and the case is covered under the purview of definition of criminal conspiracy, criminal breach of trust and cheating punishable under section 120-B, 406 and 420 IPC. The provision of the Indian Carriage of Goods by Sea Act, 1925 is applicable in civil proceedings. It is further mentioned that the accused Sudhir Shukla and accused no. 2 Saham Siddiqui both are residents of Kanpur Nagar which is situated within the local territorial jurisdiction of the trial court, who conspired the commission of the act with the applicant. The accused applicant no. 3's office was situated in Mumbai and New Delhi. As per provision of section 181 (4) of Cr.P.C.. the offence of criminal breach of trust punishable under section 406 IPC may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence, was required to be returned or accounted for, by the accused person. In the present case the accused were required to return or account for the aforesaid Copper Millberry Scrap to the opposite party no.2 at its office/godown situated in Kanpur Nagar. In the present case offence of cheating punishable under section 420 IPC has been committed through letters or telecommunication messages between accused persons which attracts the provision of section 182 of Cr.P.C. which states that in cheating, if the deception is practiced by means of letters or telecommunication messages, the same be inquired into or tried by any court within whose local jurisdiction such letters or messages were sent or were received. In the present case, the communications between the accused persons has been sent from and received at Kanpur Nagar, hence the trial court has jurisdiction to try the present complaint case.

10. I have heard the arguments of both the sides and have given thoughtful consideration to the entire material on record.

11. It is apparent from the facts of the case that the applicant Jong Seuk Park (A-3), President, Korea Machine Transport Company Ltd (KMTC) is the third accused in the complaint made by the opposite party no. 2, in which it is mentioned that co-accused no. 1 Sudhir Shukla (A-1) and co-accused no. 2 Saham Siddique (A-2) had persuaded the opposite party no. 2 to deal in copper scrap business, regarding which the deal was finalized for purchase of the said scrap from Jason Kim of the First International company Ltd. Seoul, Korea, quantity of which was 23 metric ton of the value of 84300 US$ which was to be transported from Manila, Philippines, for which the company of A-3 was engaged which was dealing in transportation business. The said consignment was to be delivered at Kanpur. At the time of loading the consignment and it's being sealed, A-3 (applicant) was present who had affixed his copper seal no. KMP 121 2651 upon the said container. The said consignment instead of reaching Kanpur, had reached Mumbai on 26/09/2009, where the opposite party no. 2 had gone to take the delivery on being informed from the side of the accused, but when the same was weighed, instead of 23 metric ton copper, the concerned consignment weighed only 6 metric ton. When the seal of the container was opened, only four bags of rubbish were found, therefore it was mentioned in the said complaint that the opposite party no. 2 was cheated of a sum of rupees 41, 30, 000/- in terms of Indian currency which was the value of 23 metric ton copper scrap, hence forgery was committed by the applicant. On the complaint being filed before court, the accused - applicant along with 2 other co-accused named above were summoned to face trial under Sections 406, 420 IPC.