HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.3882 OF 2012
Dated 3-9-2014
Between:
Arun Agarwal and another.
..Petitioners.
And:
State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.3882 OF 2012
ORDER:
This petition is filed to quash proceedings in C.C.No.51 of 2012 on the file of Judicial First Class Magistrate, Metpally for alleged offences under Sections 403, 406, 420 and 506 I.P.C.
Heard both sides.
Petitioners are A.2 and A.3 in the above referred C.C.No.51 of 2012.
First Petitioner is Managing Director of the Company M/s.KLA India Public Limited, having its office at Rajendranagar, New Delhi. Second Petitioner is Director of the said Company.
Senior Advocate Sri D.Prakash Reddy appearing on behalf of petitioners submitted that the company is having business export of iron ore and other products and during the course of business, second respondent herein entered into contract to the petitioners’ company on 10-6-2010 at New Delhi and agreed for supply of iron ore within forty days from the date of opening of letter of credit by the petitioners and that the petitioners opened letter of credit within five working days but the second respondent failed to perform his part of contract and got issued a legal notice which is false and on flimsy grounds and civil suit is filed and thereafter, it was referred to arbitration and the dispute is purely of civil nature and second respondent made an attempt to circumvent the process of law which is pending before the civil court and to arm twist petitioners for effecting payments by using process of criminal court and therefore, the proceedings are liable to be quashed. He further submitted that the petitioners approached this court and filed criminal petition No.1987 of 2011 to quash F.I.R. in Crime No.20 of 2011 and this court disposed of the same with a direction to investigate the matter thoroughly without making arrest of the petitioners but in spite of that, the Investigating Officer referred in the charge sheet that A.1 to A.3 are still absconding which would clearly disclose that no proper investigation is conducted and only on the basis of table investigation, charge sheet is filed.
On the other hand, Sri D.V.Sitaramamurthy, learned Senior Counsel appearing on behalf of second respondent submitted that the petitioners cheated de facto complainant under a pre-plan with the help of their manager Munish Bakshi-A.4 by which they encashed bank guarantee of Rs.32,42,000/- without giving letter of credit. He further submitted that only Fax copy of letter of credit was sent and when second respondent made correspondence complaining that original is not received, there was no proper response from the petitioners and it was done with dishonest intention which attract the penal provisions of offences under Sections 403, 406 and 420 I.P.C. He further submitted that the police after due investigation, filed charge sheet holding that there is prima facie material against the petitioners for the charges alleged and now this court in a 482 Cr.P.C. Petition can not decide the merits or demerits of the case. He further submitted that when there is an alternative remedy available for the petitioners, invoking Section 482 Cr.P.C. is not permissible.
He further submitted that when the second respondent went to Delhi and met petitioners/accused and informed about non-receipt of letter of credit and in spite of promising to send it, the same was not fulfilled and when the second respondent sent a E.Mail, requesting petitioner to send the original letter of credit, the accused threatened complainant with dire consequences and all these aspects are matter of evidence which cannot be decided in a 482 Cr.P.C. Petition.
Both sides have argued on several aspects which are in respect of merits and demerits of the case basing on the material supporting respective parties. Learned counsel for petitioners cited rulings of the Honourable Supreme Court and other High Courts in respect of his contentions touching the jurisdiction and ingredients of Sections 420 and 409 I.P.C. and also the point of conversion of civil disputes into criminal disputes.
Now the point that would arise for my consideration in this petition is whether the proceedings in C.C.No.51 of 2012 on the file of Judicial First Class Magistrate, Metpally are liable to quashed or not?
POINT:
The scope of jurisdiction under Section 482 Cr.P.C. is very limited. This court while exercising such jurisdiction cannot entire into a detailed discussion on merits or demerits of the case. What is to be seen at this stage is whether the case filed against the petitioners would amount to abuse of process of court, or attracting any offence. It is settled law that inherent jurisdiction has to be exercised sparingly and carefully and with caution and only when it is justified. Here admittedly, police after thorough investigation and examining as many as eight witnesses found that the accused have committed offences punishable under Sections 403, 406, 420 and 506 I.P.C. Learned Magistrate after considering the material collected during investigation took cognizance of the offence.
The ‘word’ cognizance as used in the court would indicate the stage where the Magistrate or judge takes judicial notice of an offence. The cognizance is taken of the offences and not of the offender. Once the court on perusal of charge sheet is satisfied that the charge sheet discloses commission of offence, it cannot be quashed at the stage of cognizance itself unless it is shown there is a clear abuse of process of court.
Now the argument of the advocate for petitioners is that the remedy of the second respondent is purely a civil remedy and he has already exercised that remedy and to arm twist, the petitioners to make the payment due under the civil liability, this criminal process is adopted.
On the other hand, learned counsel for second respondent submitted that as per the investigation report, petitioners have dishonestly with a criminal intention created agreement of contract dated 10-6- 2010 and persuaded the complainant to part with huge sum of Rs.32,42,000/- and these aspects are matter of evidence which cannot be decided in a 482 Cr.P.C.Petition.
As rightly pointed out by advocate for second respondent, Investigating Officer after recording statements of eight witnesses and collecting necessary documents, filed charge sheet against the petitioners herein. The relevant portion of the charge sheet is as follows:
“In the above circumstances, when it is clear that A.1 to A.3 have dishonestly with a criminal intention have created a document of contract, dated 10-6-2010 which is a false document and used as genuine and then persuaded the complainant to part with an amount of Rs.32,40,000/- and hand over a valuable security by way of bank guarantee and with dishonest criminal intention had invoked the performance bank guarantee (PBG), while the business had not at all commenced and thus deceived the complainant, as such have committed cheating in getting a valuable security in the nature of bank guarantee and breached the trust invoking the bank guarantee without knowledge and consent of the complainant and without any legal right, therefore are guilty of criminal misappropriation and for criminal intimidation as well as stated above.”
As seen from the material, second respondent has not received original letter of credit without which he cannot commence business and the bank cannot accept xerox copies of letter of credit. The allegation against the petitioners is that they purposefully as per their pre-plan did not arrange to issue original letter of credit to the bank with a view to encash the bank guarantee.
Admittedly, petitioners have not filed any discharge petition before the court below though they have a remedy under Section 239 Cr.P.C.
The entire argument of advocate for petitioners is that a civil dispute is converted into a criminal dispute and therefore, it has to be quashed.
According to settled law, where the basic ingredients of offence alleged against accused are absent, such accused should not be compelled to face criminal prosecution. It is also well settled that civil and criminal proceedings can be proceeded simultaneously and a party cannot be debarred from availing remedy under criminal law simply because he has already availed civil remedy. What is to be seen is whether there is material attracting the offences alleged against the accused persons.
Here as already referred above, Investigating Officer, after examining eight witnesses and considering some documents, filed Charge Sheet stating that there is prima facie material for the offences under Sections 403, 406, 420 and 506 I.P.C. If the accused feels that the material collected by the Investigating Officer is not sufficient to frame a charge, they have to urge the same before the trial court at the time of framing of charge and that cannot be a ground to quash the proceedings. Further, the statements recorded by police are not before this court to know what the witnesses have stated before the Investigating Officer with reference to allegations of cheating and criminal breach of trust. The decisions cited on behalf of revision petitioners are on different facts and circumstances and they are not applicable to the present case at this stage. He relied on the following decisions of Honourable Supreme Court and other High Courts.
On jurisdiction aspect, he relied on SHREE
[1]
KRISHNA POLYESTER LIMITED vs. STATE ( ) and JAI PRAKASH vs. DINESH DAYAL & MAYUR
[2]
CARPETS ( ) 39 (1989) DLT 376.
Wrong jurisdiction is not a ground for quash, if for any reason, it is found there is no territorial jurisdiction, complaint has to be returned to present in proper court.
With regard to necessary ingredients for offence under Section 420 I.P.C., he relied on V.P.SRIVASTAVA vs. INDIAN EXPLOSIVES Ltd., &
[3]
ORS. ( ) and HRIDAYA RANJAN PRASAD VERMA
[4]
& ORS. vs. STATE OF BHIAR AND ANOTHER ( ) and with regard to ingredients for offence under Section 409 I.P.C., he relied on ASHOK BASAK vs.
[5]
STATE OF MAHARASHTRA ( ) , SHARON
[6]
MICHAEL vs. SATE OF TAMIL NADU ( ) and S.W.PALANITKAR & ORS. vs. STATE OF BIHAR
[7]
AND ANR. ( ).
With regard to conversion of civil dispute to a criminal proceedings, he relied on INDIAN OIL CORPORATION vs. NEPC INDIA LIMITED & ORS. [8] ( ), G.SAGAR SURI & ANR. Vs. STATE OF U.P. &
[9]
ORS. ( ) and ALL CARGO MOVERS (INDIA) Pvt.Ltd., & ANR. vs. DHANESH BADARMAL JAIN &
[10]
ANR. ( ).
The legal propositions laid down in these decisions are not disputed by other side but it is submitted that they are not applicable to the case on hand.
As rightly pointed out by second respondent, on a perusal of the above referred decisions, I have to accept that they are not applicable at this stage. In PADAL VENKATA RAMA REDDY @ RAMU v. KOVVURI SATYANARAYANA REDDY AND OTHERS
[11]
( ), Honourable Supreme Court held that when alternative remedy is available, Section 482 Cr.P.C. is not applicable, the observation of the Honourable Supreme court in that decision is as follows:
“It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.”
In view of the above observation of the Honourable Supreme Court, the present petition cannot be entertained when the petitioners have not availed remedy of discharge which is provided under the code.
For these reasons, I am of view that this Criminal Petition is devoid of merits and liable to be dismissed. Petitioners are at liberty to urge all these grounds before the lower court and the said court shall consider them not being influenced by any of the observations made in this order.
Accordingly, with above observations, this Criminal Petition is dismissed.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE
S.RAVI KUMAR
Dated 3-9-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR
Dvs
CRIMINAL PETITION No.3882 OF 2012
Dated 3-9-2014
[1] (2007) 4 JCC 381 (NI)
[2] 39 (1989) DLT 376
[3] (2010) 10 SCC 361
[4] (2000) 4 SCC 168
[5] (2010) 10 SCC 660
[6] (2009) 3 SCC 375
[7] (2002) 1 SCC 241
[8] (2006) 6 SCC 736
[9] (2000) 2 SCC 636
[10] (2007) 14 SCC 776
[11] 2011 (2) ALD (Crl.) 948 (SC)