Court No. - 53
Case :- APPLICATION U/S 482 No. - 11912 of 2004 Applicant :- Vijay Bahadur Mishra And Another Opposite Party :- State Of U.P. And Others Counsel for Applicant :- Prashant Kumar Singh Counsel for Opposite Party :- Govt. Advocate,A.P. Tiwari,P.N.Pandey,Rama Nand Pandey,S.S. Tripathi
Hon'ble J.J. Munir,J.
This is an application under Section 482 Cr.P.C. seeking to quash charge sheet No. 70 of 2004 dated 08.07.2004 arising out of case crime No.
152 of 2004 under Section 406 I.P.C., Police Station Kotwali, District Gorakhpur giving rise to Case No. 5137 of 2004, State vs. Vijay Bahadur Mishra and other pending in the Court of Chief Judicial Magistrate, Gorakhpur.
Heard Sri Prashant Kumar Singh, learned counsel for the applicants and Sri Akhilesh Kumar Mishra, learned A.G.A. appearing on behalf of the State. Despite the case being listed under the category of old matters, learned counsel for the opposite party nos. 2 and 3 is not present.
The facts giving rise to the present complaint are that Applicant No.1 is a partner in three Firms going by the name and style of M/s. C.K. Industries, M/s. C.S. Industries and M/s. U.R. Industries. The three Firms aforesaid are hereinafter referred to as the “Firms”. The Firms have there seat of business at Kanpur Nagar and are engaged in the business of wholesale supply of food-grains to shopkeepers on demand. Applicant No.2 is a commission agent and broker, who facilitates deals between different traders engaged in the business of food-grains. It was through the good offices of Applicant No.2 that Applicant No.1 and Opposite party No.3, Pashupati Narayan Mishra, proprietor of Annapurna Trading Company of District Gorakhpur, who is hereinafter referred to as the Complainant, entered into a business transaction for supply of food-grains. It has been averred that there was regular supply of food-grains between the Firms and the complainant between 6.4.2000 and 2.12.2002. During this period of time, bills were raised for the food-grains supplied by the Firms to the Complainant in the ordinary course of business that were also liquidated and paid from time to time. There was thus, a long standing business transaction between Firms and the Complainant. In order to substantiate the aforesaid fact, the Applicants have brought on record a number of bills raised by Applicant No.1 for the goods supplied on behalf of the Firms to the Complainant, annexed compendiously as Annexure-1 to the affidavit. It is averred that on 7.6.2002, Applicant No.1 had sent 40 quintals of Masoor Daal (Malaka) worth Rs.18,000/- from the stocks of one of the Firms (M/s. C.S. Industries) to the Complainant. It is said that Applicant No.1 further sent 100 quintals of Chana Daal worth Rs.1,89,500/- from another of his three Firms, M/s. U.K. Industries to the Complainant on 7.06.2002, also. The goods were sent on credit to the Complainant as per demand. The said goods were sent through a Transport Agency M/s. Ganesh Roadways and the consignment was duly received by the Complainant. The Complainant agreed to pay within thirty days of receipt of consignment. Copies of the two bills from the Firms related to the food-grains supplied as aforesaid are annexed collectively as Annexure-2 to the affidavit.
It is detailed in paragraph-7 of the affidavit that goods were again supplied by the Firms through different consignments for each of which separate bills were raised relating to varying food-grains, pulses, etc. copies of the bills dated 2.7.2004 being collectively annexed as Annexure-3 to the affidavit. It has been claimed that of all food-grains that had been supplied by the Firms from 7.06.2002 to 2.7.2002 to the Complainant were on credit, as per his order and demand. It is claimed that there is an outstanding of Rs.4 lacs in favour of the Firms represented by applicant No.1 and against the Complainant, relative to which bills of different dates for the period 7.06.2002 and 2.7.2002 are lying un-liquidated. It is further averred that pressing the Firms' demand for payment, Applicant No.1 asked the complainant to settle his dues. The Complainant issued seven postdated Cheques in favour of M/s. C.S. Industries. All cheques have been duly signed by opposite party No.3. The total sum of money sought to be paid through cheques is in the sum of Rs.1,16,000/-, payable to the appropriate Firm. It has also been alleged that opposite party No.3 has given four National Saving Certificates, worth Rs.10,000/- each, and aggregating a sum of Rs.40,000/-, duly endorsing the same in favour of Applicant No.1. Copies of these certificates are annexed as Annexure-5 to the affidavit. There is also an endorsement made on the National Saving Certificates, in favour of Applicant No.1, which indicates that the certificates are endorsed in favour of the said applicant in respect of bills dated 7.06.2002 and 2.7.2002 issued by M/s. C.K. Industries and C.S. Industries, in partial discharge of the Complainant's liability. At the same time, the cheques issued by the Complainant towards part liquidation of his outstanding have been returned by the Applicant No.1's bankers with a memo from the Complainant bankers saying that payment was stopped by the drawer. Thereupon, Applicant No.1 sent a notice of demand by registered post on 10.05.2004, asking the Complainant to pay all due proceeds on the cheques, or else face prosecution on the expiry of the statutory period.
It has been specifically averred in paragraph-14 of the affidavit that the cheques and the National Saving Certificates were handed over by the complainant to the Applicant's on 25.03.2004, after signing the same. It is in the background of the aforesaid facts that an FIR, according to the Applicant's, has been lodged by Opposite party No.2, at the instance of opposite party No.3 with Police Station Kotwali, District Gorakhpur, saying that the shop of the Informant/Opposite party No.2 is located at Ismailpur in the neighborhood of the Complainant's shop. It is further said that Applicant No.1 is the proprietor of C.K. Industries, Kanpur Civil Lines, Kanpur Nagar whereas Applicant No.2 Mangoo is his broker. It is then said that there are business relations between the Opposite Party No.2, the Applicant No.1 and his broker Mangoo. Since, however, a new business relationship between the Applicant Nos.1 and 2 on one hand and the Complainant on the other, was being worked out, where there was still mutual faith to develop between parties, it was decided that the Complainant would deposit some papers (valuable securities with Firm Bhagwan Das) in fulfillment of which seven cheques issued by the Complainant undated worth Rs.1,16,000/- and National Saving Certificates worth Rs.40,000/- were placed in the safe custody of the Informant-Opposite party No.2. It is then alleged in the FIR that on 14.08.2002, the Applicant's came over to the Informant's shop and asked him to show the papers kept with him in trust as security for the dealings between the Applicants on one hand, and the Complainant on the other. In between, the Informant was busy dealing with his customers and ordering his goods about, when he returned to find that the Applicants were not there. It is alleged that the workers of the Informant present there told the Informant that the file (carrying cheques and the National Saving Certificates) that the Applicants had asked the informant to see, had been taken away by them.
It is on the basis of the said FIR that the present case has been registered. It is submitted that the matter has been investigated perfunctorily in a biased and lackadaisical manner, and the impugned charge-sheet filed in a case which is absolutely about business dealings between parties, with no criminal angle to it. It is said there are unpaid and unliquidated bills of Applicant No.1 outstanding towards the Complainant in the sum of Rs.4 lacs, that he has not paid. The impugned proceedings are a clear abuse of process of Court brought in connivance with Opposite party No.2. It is further submitted that no case of any criminal breach of trust punishable under Section 406 IPC is made out, inasmuch as there was no entrustment on the allegations in the FIR, of the cheques or the other securities (National Saving Certificates) to the Applicants, which according to the prosecution were in the custody of Opposite party No.2; though the said fact also is patently false and without any evidence. A counter affidavit has been filed on behalf of the Complainant, where there is a denial of the allegations in the Application. However, a perusal of paragraph-7 of the counter affidavit shows that it is admitted that there were business dealings between parties, and there were payments made to the Applicants for the goods supplied. It is alleged that payments were made through Bank Draft, in advance and cash payment, in relation to which there are endorsements of receipts and vouchers by Rakesh Sharma, and also on the cash register.
At the hearing, no one has appeared as already noted, on behalf of the Complainant or Opposite party No. 2, leaving the Court with no option but to go through papers with the assistance of the learned AGA. The fact that there are business transactions between parties is more than evident from the documents and the non-traverse of the fact in paragraph-7 of the counter affidavit filed on behalf of the Complainant and the Informant (Opposite party Nos. 2 and 3). Applicant No.1 is a wholesale supplier of food-grains, a trader, whereas the Complainant is also in the same business. Apparently, there is a dispute regarding unliquidated bills of Applicant No.1 for goods supplied. The said fact is not repudiated, at least to the extent of there being business dealings between parties. Apparently, the dispute is over money that has on demand being made led the Complainant in association with the Informant to bring the impugned prosecution, alleging criminal breach of trust. The story that to start a new business dealing, some cheques and National Saving Certificates were kept with a third party, the Informant here, a shopkeeper in the neighborhood of the Complainant, is rather incredible. This kind of a demand to keep securities with a third party between two traders dealing in food-grains, assuming that they were freshly entering into business relations is too incredible to meet the eye. The story in itself appears to be far-fetched. Rather, the applicant's case that there were outstanding bill is apparently one that is supported by documentary evidence to establish so much for a prima facie that there were business dealings between parties. So far as the allegation regarding criminal breach of trust is concerned, there is apparently no entrustment of the securities to the Applicant, if one goes by the prosecution story. In case the Applicant's allegations were to be believed that cheques were given together with duly endorsed National Saving Certificates for liquidation of outstanding bills, there would again be no criminal breach of trust. Ex facie no offence of criminal breach of trust is made out, and the impugned prosecution appears to be one brought mala fide in order to settle accounts between parties, who have had business dealings for the past two years, prior to commencement of hostilities.
In matters involving business transactions where parties had dealing, allegations of the present kind that are incredible and inherently improbable, besides being attended with mala fides and also tainted with an ulterior motive have been considered to be good ground to quash proceedings by the Hon'ble Supreme Court in Rashmi Jain Vs. State of Uttar Pradesh and Anr. reported in (2014) 13 SCC 553 which applies to the facts of the present case. In the said decision also the issue between two parties who had business dealings and had a civil dispute about payment of balance of Rs.1,52,018/- led to a prosecution being launched on an absurd allegation, where applying fifth and seventeenth proposition, in State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 their Lordship's quashed the complaint.
In the considered opinion of this Court, motivations that have driven the Complainant or the Informant to launch the present prosecution are clear from the genesis of it. There is something strange about the entire prosecution story, where a neighboring shopkeeper was first asked to act as the holder of a security to usher in new business dealings between two businessmen, that is to say, the Applicant No.1 on one hand and the Complainant on the other, and then the allegations about the Applicant's asking to see those security papers, and making off with them. These facts in the background of a money claim/outstanding due to Applicant No.1 against the Complainant regarding which he had sent a legal notice, convinces this Court that these proceedings with incredible allegations have been initiated mala fide to browbeat Applicant No.1 into retracting from the prosecution of his money claim through proceedings, such as a prosecution under Section 138 Negotiable Instruments Act, or proceedings to encash the securities held.
In the result, this application succeeds and is allowed. The impugned charge-sheet No.70 of 2007 giving rise to Case No.5137 of 2004 State Vs.
Vijay Shanker Mishra and Anr. (relating to Case Crime No.152 of 2004) under Section 406 IPC Police Station Kotwali, District Gorakhpur pending before the Chief Judicial Magistrate, Gorakhpur are hereby quashed.
Let an entry be made in the GD of Police Station Kotwali, District Gorakhpur that proceedings of Case Crime no. 152 of 2004, under Section 406 IPC, Police Station Kotwali, District Gorakhpur stand quashed under orders of this Court. This part of the direction shall be ensured compliance of in the records of the Police Station concerned by the Chief Judicial Magistrate, Gorakhpur.
Let a certified copy of this order be forwarded at once to the Chief Judicial Magistrate, Gorakhpur, through the Sessions Judge, Gorakhpur by the office forthwith.
Order Date :- 20.12.2018 NSC