Shri Srinivasa Cut Pieces Cloth ... vs The State Of Maharashtra And ...
2004 Latest Caselaw 302 Bom

JUDGMENT

D.B. Bhosale, J.

1. Rule. Rule returnable forthwith. Mr. B.R. Patil, learned Public Prosecutor, waives service for respondents No.1-State. Mr Dhanuka, learned counsel, waives service for respondent No. 2-complainant Heard finally by consent of the learned counsel for the parties.

2. This writ petition was heard along with twenty-six other writ petitions filed by different petitioners invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure (for short, "the Code") read with Article 227 of the Constitution of India (for short, "the Constitution") for quashing of the proceeding bearing Criminal Complaint/Case No. 147/S of 1997, pending in the Court of the Metropolitan Magistrate. The facts in all the writ petitions are not only similar but they are also identical. The only difference in all the petitions is that of the cases of the petitioners and the amounts involved. In view of this, the judgment in the instant writ petition would cover all other twenty-six writ petitions and they would also stand disposed of in accordance with this judgment.

3. The factual matrix reveals is that petitioner No. 2 is a trader from Andhra Pradesh and carries on a business in the name and style of M/s Shri Srinivasa Cut Pieces Cloth Shop-petitioner No. 1, situate at Rajahmundri-Respondent No. 2 (for short, "the complainant") has filed the complaint against the petitioners and 26 others stating that he is the proprietor of Sai Syntex having his office in Mumbai. According to the complainants, the petitioners represented to him that they are dealing in textile goods/fabrics and that they intended to procure textile goods from the complainant through their agents M/s S.K.V. Enterprises. Vijayawada. They further represented that they would pay interest at the rate of 24% per annum on delayed payment beyond 45 days and/or value of the goods would be paid within the stipulated period of 45 days from the date of the invoice. It is further alleged that they induced the complainant to part with the textile goods and the aforestated conditions and did not pay the value of the goods. The case of the complainant is that the petitioners had no intention of making the balance payment of the textile goods supplied by him and hence they have committed an offence punishable under Section 420 of the Indian Penal Code (for short, ("I.P.C."). The petitioners according to the complainant, caused wrongful loss of Rs. 3,251/- to them. The complainant claims that he had called upon the petitioners to make the payment, but they failed to do so and, therefore, a notice dated 21.2.1995 was sent through an Advocate. Thus, according to the complainant, the petitioners, in furtherance of a common intention of cheating, induced the complainant to part with textile goods knowing fully well that they would not be able to clear the outstanding bills and have thereby caused a wrongful loss of Rs. 3,251/- to the complainant.

4. On the other hand, according to the petitioners, they had dealings with the complainant during the period commencing form August, 1991 to March, 1993. They used to purchase the textile goods from the complainant through their agent at Vijayawada - M/s. S.K.V. Enterprises. They have categorically stated in the petition that during the aforestated period, under the various bills, they had purchased textile goods and made payments to the said agents and/or to the complainant by demand drafts/cheques and occasionally in cash. It is also stated in the petition that the last such dealing with the complainant was on 10.3.1993 when, according to the petitioners, after making up accounts, they had made payments of all the outstanding dues to the complainant and nothing remained due and payable by them to the complainant. The particulars of the payments made by the petitioners are also given in the petition and that they have craved leave to refer to and rely upon the bills, receipts, bank statement, counterfoils of cheques and account books in respect of their dealings with the complaints. In paragraph 3 (d) and (f), the petitioners have made a categoric statement that the complainant has filed over 125 cases against the traders from Vijayawada, Rajahmundri, Visakhapatnama, Trichy, East Godawari in Andhra Pradesh and in all these cases the complaint is stereotype. It is further stated that in all the complaints there are only 11 paragraphs, the averments, comma, fullstops are identical except that the names of the accused and the amounts are different. All the complaints are identical and there is no difference of any nature whatsoever in all 125 cases filed by the complainant.

5. It is in the backdrop, the petitioners have invoked the inherent powers of this Court seeking quashing of the criminal cases pending since 1995 in the Court of the Metropolitan Magistrate at Bombay.

6. I have heard the learned counsel for the parties for quite some, perused the contents of the petition and annexure thereto and the reply affidavit filed by the respondents. The learned counsel for the parties have placed reliance upon several judgments of the Apex Court in support of their contentions.

7. Mr. Jha, learned counsel for the petitioners, at the outset, placed heavy reliance upon the order passed by this Court in Criminal Writ petition No. 95 of 1996 which came to be disposed of on 24.4.1997. In his submission, the complaint involved in the Criminal Writ Petition Petition No. 95 of 1996 and the complaint in the instant writ petition are identical. In other words, the Criminal Case No. 230/S/95, which was the subject matter of Criminal Writ Petition No. 95 of 1996, is one out of 125 cases filed by the complainant against the traders from Andhra Pradesh. The complaint in the said case and the complaint in the instant case is identical. Both these complaints have 11 paragraphs and the averments comma, fullstop are identical except the names and the amounts mentioned in these two complaints. The said writ petition was allowed by order dated 24.4.1997 and Criminal Case No. 230/S/95 was quashed. He, therefore, submitted that the instant writ petition is squarely covered by the order passed by this Court in Criminal Writ Petition No. 95 of 1996 and, therefore, deserves to be allowed.

8. Mr. Jha further submitted that the complainant has deliberately suppressed material facts while filing the complaint and it was filed only with a view to harass the traders from outside State and extract amounts which were not due from them. The complaint is vague as it does not make reference to the bill numbers and the vouchers. There is also no reference to the earlier dealings and the payments made by the petitioners from time to time either by cheques or by demand drafts or in cash. According to Mr Jha, even if it is assumed that the amounts wee still outstanding, the only remedy available to the petitioners was to file a civil suit and not the criminal cases inasmuch as the nature of dispute is wholly of civil nature. It was also submitted that this is a fit case where this Court should exercise the inherent powers under Section 482 of the Code read with Article 227 of the Constitution to quash the said criminal proceedings. In support of his submission, he placed heavy reliance upon the following judgments of the Apex Court (i) State of Haryana v. Bhajanlal, AIR 1992 SC 504 , (ii) Madhavrao Scindia v. Sambhajirao Chandrajirao Angre, , (iii) Pepsi Foods Ltd. v. Special Judicial Magistrate and Ors. (iv) Hari Singh v. Haryana , and (v) Dist. Manager APSRTC v. K. Sivaji, (2001) 2 SCC 135.

9. On the other hand, Mr. Dhanuka, learned counsel for the complainant, submitted that the order passed by this Court in Criminal Writ Petition No. 95 of 1996 dated 24.4.1997 cannot be relied upon or taken recourse to, to allow the instant petition, in view of the fact that the said order was passed ex-parte. In view of this submission of Mr. Dhanuka, I heard him on merits at length. Mr. Dhanuka further submitted that this writ petition deserves to be dismissed on the ground of delay and on the ground that the discharge application, that was filed by the petitioners before the learned Magistrate, came to be dismissed as not pressed on 28.8.2003. Mr. Dhanuka further submitted that the complaint, prima facie, discloses the offence under Section 420 of IPC. In support of this submission, he invited my attention to the averments in the complaint and in particular paragraph Nos. 3 and 6 to contend that the petitioners induced the complainant to part with textile goods and thereby caused wrongful loss to him and wrongful gain to them. The inherent powers under Section 482 of the Code, according to Mr. Dhanuka, cannot be exercised to stifle legitimate prosecution. Mr. Dhanuka further submitted that the inherent powers under Section 482 of the Code is only an exception and not the rule and that the said power has to be used very sparingly and that the instant case is not a fit case to exercise the powers and quash the criminal proceedings. He further submitted that this Court cannot assume the role of trial Court and embark upon an enquiry as to the reliability of the material on record. He further submitted that the sale of goods on condition of payment of price on delivery, and in turn nonpayment of the price thereof amounts to cheating. He also submitted that the complainant would not have any objection if the petitioners were given liberty to file a fresh application for discharge before the trial court as that would be a proper course to follow. In short, according to Mr. Dhanuka, whether a dispute is of civil nature or not, could be decided only after recording of evidence and the petitioners would have an opportunity to prove their case at the trial. Though in paragraph 7 of the reply affidavit the complainant has stated that the facts of the present case are entirely different from the facts of Criminal Case No. 230/S/95 which has been quashed by this Court in Writ Petition No. 95 of 1996, Mr. Dhanuka fairly conceded that the contents of the complaint in the instant case and that of the Criminal Complaint No. 230/S/95 are identical and the difference is only of name and the amounts, Mr. Dhanuka placed heavy reliance upon the following judgments of the Apex Court in support his contentions: (i) State of Karnataka v. M. Devendrappa and Anr., , (ii) State of Himachal Pradesh v. Krishnan Lal Pradhan and Ors., , (iii) Mahadeo Prasad v. State of West Bengal, 1954 Cri.L.J.1806 (SC), (iv) Union of India v. Prakash P. Hinduja and Anr., , (v) State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru and Ors., and (vi) M. Krishnan v. Vijay Singh and Anr., AIR 2003 SC 3014.

10. I have heard the learned counsel for the parties and with their assistance, I have carefully gone through the petition and the annexures thereto as also the reply affidavit filed by the complainant. The Apex Court, in a catena of judgments, has considered the ambit of the inherent powers of the High Court under Section 482 of the code read with Article 227 of the Constitution to quash the criminal proceedings. The Apex Court in Pepsi Foods Ltd. (supra) has clearly held that though the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he has to undergo the agony of a criminal trial. In paragraph 30 of the report, the Apex Court has observed that it is no comfortable thought for the appellants to be told that they could appear before the Court which is at a far off place in Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them.

(a) Similarly, in Madhavrao Scindia (supra), the Apex Court has observed that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose would be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a particular case also quash the proceedings, even though it may be at a preliminary stage.

(b) The Apex Court in Bhajanlal and Ors. (supra) has enumerated categories of the case where the High Court may in exercise of the powers under Article 226 and 227 of the Constitution or under Section 482 of the Code may interfere in the proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice. It has also noted that such powers should be exercised sparingly and that too in the rarest of rare cases.

(c) In Union of India v. Prakash P. Hinduja and Anr. (supra), relied upon by the complainant, the Apex Court, while considering the ambit of the power under Section 482 of the Code, has held that the inherent power can be exercised to quash the criminal proceedings on the following grounds: (i) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (ii) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (iii) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the Act concerned to the institution and continuance of the proceedings. The Apex Court has also noted that such power has to be exercised in a rare case and with great circumspection. However, in that case, since the High Court had not examined the nature of the allegations made in the FIR or the evidence by which the prosecution sought to establish charge against the accused during trial, allowed the appeal by setting aside the judgment and order of the High Court quashing the criminal prosecution.

(d) In Navjot Sandhu alias Afshan Guru and Ors. (supra) the Apex Court was considering the case of five terrorists who attacked the Parliament. In that case, it is observed that the inherent power is to be used only in case where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. It is further held that the inherent power must be exercised very sparingly in cases which require interference would be few and far between. The most common cases where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction and while doing so it must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This judgment of the Apex Court, in my opinion, would not help the complainant, keeping in view the facts of the instant case.

(e) IN yet another case M. Krishna (supra), the Apex Court has observed that the inherent powers for quashing the proceedings at the initial stage can be exercised only where the allegations made in the complaint or the first information report, even if taken at their face value or accepted in their entirety, do not prima facie disclose the commission of an offence.

(f) In the State of Karnataka v. M. Devendrappa and Anr. (supra), yet another case relied upon by the complainant, it is held that in exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. It is further held that when no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. In this case, the Apex Court has also noted that the High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material; and no hard and fast rule can be laid down in regard to cases in which the High Court should exercise its extraordinary jurisdiction of quashing the proceeding at any stage. The reliance placed on the judgment of the Apex Court in State of Himachal Pradesh v. Krishnlal Pardhan (supra), in my opinion, is misplaced.

11. It is thus clear that this Court has sufficient powers to quash the criminal prosecution if it finds that initiation or continuance of the criminal proceedings amounts to abuse of the process of Court or quashing of the proceedings would otherwise serve the ends of justice, when no offence is disclosed by the complaint. This Court, in a given case, can indubitably exercise the power under Section 482 of Code even if the discharge application is either not filed or is pending before the trial Court, when the complaint does not make out any case against the accused and that no useful purpose is likely to be served by allowing the continuance of the criminal prosecution. The very purpose for exercising such power is to avoid agony of undergoing a criminal trial. It is also not comfortable thought for the petitioners to be told that they could appear before the Court, particularly which is at a far off place outside their State, seek there release on bail and then to either move an application for discharge or for recalling of the process or face trial when the complaint makes out no case against them or a dispute is of a civil nature.

12. This Court in Criminal Writ Petition No. 95 of 1996 by order dated 24.4.1997, had quashed criminal case No. 230/S/95 filed by the complainant against one of the similarly placed traders from Andhra Pradesh. In paragraphs 2 and 3 of the judgment, this Court held thus:-

"2. The first respondent is the complainant. He filed a private complaint against the petitioners alleging an offence of cheating under Section 420 IPC. The allegations in the complaint are that the complainant had delivered textile goods on credit to accused persons, that the accused have not paid the value of the same inspite of repeated demands and the notice. It is, therefore, alleged that the accused have committed an offence of cheating. The learned Magistrate issued process under Section 420 of IPC. Being aggrieved by that order, the accused have come up with the present petition.

3. After perusing materials on record, I am satisfied that issue of process cannot be sustained and the dispute is of civil nature.

This is purely a case of supplying goods on credit an the accused have not paid the value of goods to the complainant. But the defence is that the accused had paid the amount. Even, if we ignore the defence, as per the allegations in the complaint, it is only on case of accused not paying the value of the goods, which they had received on credit. It is purely a civil dispute and does not amount to an offence of cheating. The learned Magistrate has not applied his mind to the facts of the case, but mechanically has issued process. It is a sheer abuse of process of the court if the civil dispute is allowed to be tried in a criminal forum. Hence, issue of process is liable to be quashed."

13. It is true that this Court while disposing of the aforestated criminal writ petition, neither the petitioner nor the respondent was present. However, it is apparent from the order that the learned Single Judge had perused the entire record and after satisfying that the dispute was of a civil nature, quashed the proceedings. On perusal of the complaint and the averments in the petition, I find no reason to take a different view in the matter than the one that has been taken by the learned Single Judge in Criminal Writ Petition No. 95 of 1996. It is apparent that the transaction between the complainant and the petitioners was purely a case of supplying the goods on credit and that the petitioners did not pay the value of the goods to the complainant. Moreover, the complaint, in my opinion, is also vague. It does not give particulars, such as date of transactions, bill numbers, vouchers etc. The complainant has also not made any reference in the complaint regarding the earlier transactions with the petitioners during the period commencing from August, 1991 to March, 1993. Even in the reply affidavit the complainant has not given any particulars or controverted the statements made by the petitioners in the petition and in particular the contents of paragraphs 3 and 4 thereof. In view of this, I have no hesitation in agreeing with the view taken by the learned Single Judge in Writ Petition No. 95 of 1996. As a matter of fact, that well settled basic principle which has to be kept in view, in an eventuality, such as in the present case, is that the Courts of co-ordinate jurisdiction should have consistent opinions in respect of an identical set of facts or on a question of law. If courts express different opinions on the identical set of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy. It is a very sound rule and practice that like questions should be decided alike, otherwise on same question of law or same set of facts different persons approaching a Court can get different orders. This basic principle is enunciated by the Apex Court in Harisingh v. State of Haryana (supra). Keeping this in view and as I have already expressed that I do not find any justifiable reason to take a different view from the one which had been taken by the learned Single Judge in Criminal Writ Petition No. 95 of 1996, this petition deserves to be allowed for the selfsame reasons.

14. Mr. Dhanuka, learned counsel for the complainant with vehemence at his command, submitted that bare look at the complaint shows that the offence under Section 420 of IPC is made out. In support of his contention, he invited my attention to paragraphs 3 and 6 of the complaint in particular and submitted that it has been clearly mentioned in paragraph 3 that but for the representation and inducement of the part of the petitioners, the complainant would not have parted with textile goods and that the petitioners, right from the very inception, had no intention of making the balance payment. On the other hand, Mr. Jha, learned counsel for the petitioners, submitted that merely because the ingredients of Section 420 of IPC reflect in the complaint in the form of the wording of the section would not mean that the offence under that provision is made out. I have perused the complaint minutely. The complainant has stated in the complaint that he was induced by the petitioners to part with the textile goods. While saying so the complainant has suppressed several facts. There is no reference in the complaint that the petitioners were dealing with him since more than 2-3 years prior to the last transaction which invited the complaint under Section 420 of IPC. The transaction referred to in the complaint was not an isolated transaction, as tried to suggest in the complaint. Moreover, it does not give the particulars of the transaction.

15. I am of the considered view that merely because the ingredients of a particular offence reflect in the complaint, in the form of the wordings of the section, that by itself, would not be sufficient to constitute an offence and to hold that prima-facie case has been made out. In other words, merely because, the complaint states that the accused cheated him and dishonestly induced him to deliver a property to any person without there being a reference to other particulars in the complaint or a reference to the earlier transactions between them, such wording of the complaint by itself would not constitute an offence under Section 420 of IPC. The Magistrate before whom the complaint is filed, is expected to apply his mind to the facts of the case and the law applicable thereto. He has to examine the nature of the allegations made in the complaint before issuing a process or the summons to the accused. The Magistrate is expected to be very careful while issuing the process in the complaint, particularly when the averments therein are vague and prima facie do not disclose any offence or that the dispute reflected in the complaint is of a civil nature. The party to the criminal proceedings cannot be made to undergo the agony of trial which may take a number of years to end. In the present case, I am satisfied that the dispute between the parties was of civil nature. It was purely a case of supplying goods on credit to the complainant and that the accused was not paying the value of the goods supplied to the complainant. Even if the defence as disclosed in the petition is ignored, it is only a case where the goods were delivered on credit and the value of the goods was not paid by the accused. It is in this backdrop, I find no merits in the submissions of Mr. Dhanuka, learned counsel for the complainant.

16. In the result, this petition is allowed. The issue of process and further proceedings in Criminal Complaint/Case No. 147/S of 1997 are hereby quashed. However, this order is without prejudice to the rights of the complainant to recover whatever amount due to him from the accused by approaching the Civil Court in accordance with law.

Authenticated copy of this order may be made available to the parties.