Bombay High Court
Mahindra & Mahindra Co. Ltd vs The State Of Maharashtra on 19 September, 2008
Bench: V.R. Kingaonkar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 108 OF 1999
1. Mahindra & Mahindra Co. Ltd.,
(Farm Equipment Sector),
Worli Road 13, Worli, Bombay.
2. Anand Mahindra,
Managing Director,
Mahindra & Mahindra Co. Ltd.,
Mumbai, R/o Office, situated
at Gateway of India, Mumbai.
3. Ravi Mathur,
Area Manager, Mahindra &
Mahindra Co. Ltd. (Farm Equipment
Sector), Tadiwala Road,
Dr. Ramabai Ambedkar road, Pune.
4. Karimattam Joseph Davasia,
President and Executive Director
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
5. Rajendra Kumar Bhurat,
Head of Marketing
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
6. Atul P. Sinha,
Deputy General Manager
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai. PETITIONERS
VERSUS
1. The State of Maharashtra
2. Ramniwas Kachardas Bhandari,
Nath Automobiles, Ghai Chambers,
Jalna Road, Aurangabad. RESPONDENTS
.....
Mr. Shirish Gupte, Senior Counsel, with Mr. A.S.
Bajaj, advocate for the petitioners.
Mr. N.H. Borade, A.P.P. for respondent No. 1/State.
Mr. S.M. Godsay, advocate for respondent No. 2.
.....
WITH
CRIMINAL APPLICATION NO. 472 OF 1999
1. Mahindra & Mahindra Co. Ltd.,
(Farm Equipment Sector),
Worli Road 13, Worli, Bombay.
2. Anand Mahindra,
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Managing Director,
Mahindra & Mahindra Co. Ltd.,
Mumbai, R/o Office, situated
at Gateway of India, Mumbai.
3. Ravi Mathur,
Area Manager, Mahindra &
Mahindra Co. Ltd. (Farm Equipment
Sector), Tadiwala Road,
Dr. Ramabai Ambedkar road, Pune.
4. Karimattam Joseph Davasia,
President and Executive Director
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
5. Rajendra Kumar Bhurat,
Head of Marketing
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
Worli, Mumbai.
6. Atul P. Sinha,
Deputy General Manager
(Farm Equipment Sector),
Mahindra & Mahindra Co. Ltd.,
VERSUS
Worli, Mumbai.
1. The State of Maharashtra
PETITIONERS
2. Ramniwas Kachardas Bhandari,
Nath Automobiles, Ghai Chambers,
Jalna Road, Aurangabad. RESPONDENTS
.....
Mr. A.S. Bajaj, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for respondent No.1/State.
.....
WITH
CRIMINAL APPLICATION NO. 2146 OF 1997
1. Anand Mahindra,
Executive, Mahindra &
Mahindra Co. Ltd.,
(Farm Equipment Sector)
Marketing Division, Worli,
Road No. 13, Mumbai.
2. Ravi Mathur,
Area Manager,
Mahindra & Mahindra Limited,
Tractor Division, Area Office,
Pune.
3. Bridendrakumar Rajkumar Shrivastav,
Sales Officer, Mahindra & Mahindra
Ltd., Tractor Division, Area Office,
Pune. PETITIONERS
VERSUS
1. State of Maharashtra
2. The Police Inspector
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CIDCO Police Station,
Aurangabad.
3. Arvind Meghashyam Aradhye,
R/o Vrandavan Colony, Opp.
S.T. Stop, Aurangabad. RESPONDENTS
.....
Mr. Shirish Gupte, Senior Counsel, with Mr. A.S.
Bajaj, advocate, for the petitioners.
Mr. N.H. Borade, A.P.P. for respondents No. 1 & 2.
Mr. B.K. Pawar, advocate holding for Mr. Ajit Kale,
advocate for respondent No. 3.
.....
WITH
CRIMINAL APPLICATION NO. 2278 OF 1997
1. Anand Mahindra,
Executive, Mahindra &
Mahindra Ltd., Farm
Equipment Sector, Marketing
Division, Varali Road No. 13,
Mumbai.
2. Ravi Mathur,
Area Manager,
Mahindra & Mahindra Ltd.,
Tractor Division, Area Office,
Pune.
3. Bridendrakumar Rajkumar Shrivastav,
Sales Officer, Mahindra and Mahindra
Ltd., Tractor Division, Area Officer,
Pune.
4. Rajkumar Burhat,
Mahindra & Mahindra Ltd.,
Gateway Building, Appollo
Bunder, Mumbai. PETITIONERS
VERSUS
1. State of Maharashtra
2. The Police Inspector,
CIDCO Police Station,
Aurangabad.
3. Vishwanath Bala Sapkal,
R/o Vasai, Taluka Sillod,
Dist. Aurangabad. RESPONDENTS
.....
Mr. Shirish Gupte, Senior Counsel, with Mr. A.S.
Bajaj, advocate for the petitioners.
Mr. N.H. Borade, A.P.P. for respondents No. 1 & 2.
Mr. B.K. Pawar, advocate, holding for Mr. Ajit
Kale, advocate for respondent No. 3.
.....
AND
CRIMINAL APPLICATION NO. 1648 OF 1998
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Ramnivas s/o Kachardas Bhandari,
R/o Plot No. 31, N-2, CIDCO,
Aurangabad. PETITIONER
VERSUS
1. The State of Maharashtra
2. The Police Sub Inspector,
Police Station, CIDCO,
Aurangabad.
3. Arvind s/o Meghshyam Araddhe,
R/o Vrandavan Colony, Opp.
S.T. Stop, Aurangabad.
.....
Mr. S.M. Godsay, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for respondents No. 1 & 2.
Mr. B.K. Pawar, advocate, holding for Mr. Ajit
Kale, advocate for respondent No. 3.
.....
WITH
CRIMINAL APPLICATION NO. 1869 OF 1997
Ramniwas s/o Kachardas Bhandari,
R/o Nath Automobiles, Jalna Road,
Aurangabad, Dist. Aurangabad.
VERSUS
PETITIONER
1. The State of Maharashtra
2. The Superintendent of Police,
Ahmednagar, Dist. Ahmednagar. RESPONDENTS
.....
Mr. S.M. Godsay, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for respondents.
.....
WITH
CRIMINAL APPLICATION NO. 1700 OF 1997
Ramnivas s/o Kachardas Bhandari,
R/o Plot No. 31, N-2, CIDCO,
Aurangabad. PETITIONER
VERSUS
1. The State of Maharashtra
2. The Commissioner of Police,
Aurangabad. RESPONDENTS
.....
Mr. S.M. Godsay, advocate for the petitioner.
Mr. N.H. Borade, A.P.P. for the respondents.
.....
[CORAM : V.R. KINGAONKAR, J.]
DATE OF JUDGEMENT RESERVED : 1st September, 2008
DATE OF JUDGEMENT PRONOUNCED : 19th September, 2008
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JUDGEMENT :
1. These are two (2) groups of petitions which
are being disposed of together in order to avoid
overlapping consideration of identical questions of
law and facts. The first group of petitions comprise
of petitions filed by Mahindra and Mahindra Co. Ltd.
and its officers. Another group of petitions comprise
of petitions filed by Ramnivas Kachardas Bhandari, who
is respondent No. 2 in the first group of petitions.
2. By
Writ
Mahindra and Mahindra Co.
Petition No.
Ltd.
108/1999, petitioners
(hereinafter referred
to as "M&MC Ltd.", for sake of brevity) and others
seek quashing of process issued in and proceedings of
a private complaint case instituted by respondent No.
2 - Ramnivas bearing R.C.C. No. 104/1998 pending on
file of learned Judicial Magistrate (F.C.),
Aurangabad, for offences punishable under section 467,
468, 420, 409, 471 read with section 34 of the I.P.
Code against them. They filed Criminal Application
No. 472/1999 seeking production of certain documents
in the above writ petition. Anand Mahindra and others
filed remaining two (2) petitions in the first group
seeking quashing of first information reports
registered vide Crimes No. I-196/1997 and No.
I-218/1997 at CIDCO Police Station, Aurangabad for
offences punishable under section 406 and 420 read
with section 34 of the I.P. Code.
3. Petitioner Ramnivas seeks quashing of first
information report registered against him vide Crime
No. 196/1997, at CIDCO Police Station, Aurangabad for
offences punishable under section 406, 420 read with
section 34 of the I.P. Code and first information
report registered vide Crime No. 31/1997 at Tofkhana
Police Station, Ahmednagar, for offences punishable
under section 420, 467 and 468 of the I.P. Code. His
third petition (Criminal Application No. 1700/1997)
is for anticipatory bail in context of the first
information
report registered vide Crime No. 97/1997
at CIDCO Police Station, Aurangabad.
4. Indisputably, since 1991, petitioner Ramnivas
Bhandari was running business as dealer of Tractors of
M&MC Ltd., in the name and style as "Nath Automobiles,
Aurangabad". The dealership was approved by M&MC Ltd.
as per terms of the dealership agreement. The
dealership agreement was to the effect that M&MC Ltd.
would provide tractors and trolley vehicles to Nath
Automobiles on cash payment basis. The agreement was
to transact business on principal to principal basis.
Admittedly, Nath Automobiles was not agent or subagent
of M&MC Ltd. There is no dispute about the fact that
M&MC Ltd. raised certain objections regarding working
of the proprietary firm run by petitioner Ramnivas
Bhandari i.e. Nath Automobiles in the year 1996. By
letter dated 31st July, 1996, the latter was informed
to obtain and provide Letter of Credit (L/C) for Rs.
10 lacs as per the agreement. It appraised Nath
Automobiles regarding complaints received from
customers pertaining to malpractices adopted in the
business and false assurances given regarding delivery
of the tractor vehicles. It was further informed to
Nath Automobiles that decision was, therefore, taken
to terminate dealership agreement as per clause (18)
thereof. Petitioner - Ramnivas Bhandari, however,
continued to accept the orders from customers for
supply
of the tractors. He urged for continuation of
the dealership. He also assured to open a Letter of
Credit for Rs. 20 lacs in name of M&MC Ltd. By his
letter dated 1st October, 1996, he further assured the
Company that demand drafts will not be accepted from
the customers by him in the name of M&MC Ltd., but all
the dealings will be done through the Letter of Credit
only. The proposal was accepted on the conditions
mentioned in the letter and production of Letter of
Credit from the Bank. The arrangement could not be
worked out seemingly because he did not produce the
Letter of Credit, as assured.
5. In the meanwhile, some of the customers from
whom orders were accepted by Nath Automobiles made
complaints against the dealer for non-delivery of the
vehicles. They made such complaints to the Company.
There was no privity of contract between M&MC Ltd.
and those customers from whom payments were accepted
by Nath Automobiles. The concerned officers of M&MC
Ltd. naturally advised such customers to approach the
dealer. The dealer tossed the buck and eventually
told the customers that the vehicles were not supplied
by M&MC Ltd. The frustrated customers lodged various
complaints at the CIDCO Police Station, Kranti Chowk
Police Station at Aurangabad and also at Tofkhana
Police Station, Ahmednagar.
6. The
dealer lodged first information report at
CIDCO Police Station, Aurangabad against M&MC Ltd and
its officers. The dealer - Ramnivas Bhandari
subsequently instituted a private complaint case
(R.C.C. No. 104/1998) alleging that he was duped by
M&MC Ltd and its officers. He averred that he had
sent twelve (12) demand drafts of Rs. 22,34,256/- to
M&MC Ltd. alongwith orders for supply of tractors.
The demand drafts were encashed by M&MC Ltd. and were
credited in its account. He averred that inspite of
such payments made by him, the tractor vehicles were
not supplied by M&MC Ltd. He met the officers of M&MC
Ltd., but it was invain. He learnt that the demand
drats were credited to the account of M/s Wasan
Automobiles, Nasik instead of crediting them to his
account. The officers of M&MC Ltd. gave evasive or
false replies to his queries. He, therefore, met
Anand Mahindra and urged to look after his grievances
with sympathetic view. He alleged that Anand Mahindra
told him that since the latter's friend M/s Wasan
Automobiles was sued by him, he will have to pay its
price. He was threatened that he will be imprisoned.
He, therefore, issued notice dated 08-10-1997 to M&MC
Ltd. which was falsely replied on 28-10-1997. It was
reiterated by the latter that 12 demand drafts were
received from M/s Wasan Automobiles, Nasik and
Ahmednagar and not from him. He alleged, therefore,
that he was cheated and the amounts sent by him came
to
be misappropriated by M&MC Ltd. and its officers.
The learned Judicial Magistrate considered the
verified statement of complainant - Ramnivas Bhandari
- and came to conclusion that a prima facie case was
made out for issuance of process under section 420,
409, 467, 468, 471 and 506 read with section 34 of the
I.P. Code. Hence, process was issued by order dated
12-10-1998. The said order and the proceedings of the
private criminal case are being challenged by M&MC
Ltd. and others in Writ Petition No. 108/1999. In
the same proceedings, an application (Criminal
Application No. 472/1999) is filed for production of
certain documents.
7. Anand Mahindra and others seek to challenge
first information report, registered vide Crime No.
I-196/1997 at CIDCO Police Station, Aurangabad on a
complaint lodged by one of the customers, namely,
Arvind Meghashyam Araddhye. In his complaint, the
customer - Arvind alleged that a demand draft of Rs.
2,18,945/- drawn on State Bank of Hyderabad, Khultabad
was given to proprietor of Nath Automobiles. He did
not receive delivery of tractor. He frequently
inquired with proprietor - Ramnivas Bhandari, but was
bluffed. The area Manager of M&MC Ltd. was
contacted, but he was informed that he should contact
proprietor of Nath Automobiles because it was
responsibility of the latter to supply the tractor.
He
noticed that Rmnivas Bhandari had closed business
of Nath Automobiles. He felt cheated and, therefore,
lodged the first information report. Similarly,
customer Vishwanath Sapkal lodged first information
report, vide Crime No. I-2218/1997, alleging that a
demand draft of Rs. 2,89,245/- for purchasing a
tractor and trolley was handed over by him to
proprietor of Nath Automobiles. The proprietor -
Ramnivas Bhandari accepted the demand draft and
assured to provide the tractor. Though he several
times contacted the proprietor, yet, could not get the
tractor vehicle. The proprietor informed him
subsequently that the tractor meant to be delivered to
him was given to another agriculturist. He inquired
with the Sales Officer and the Regional Manager of
M&MC Ltd. He was informed that the demand draft sent
by him was not received by the Company. Consequently,
he lodged the first information report.
8. Petitioner Ramnivas seeks to challenge the
first information reports lodged by customers against
him pertaining to non-delivery of the tractors. He
alleges that the first information report (Crime No.
196/1997) is lodged against him, though he did not
induce complainant Arvind Araddhye to deliver demand
draft for Rs. 2,18,945/-. He alleges that he was at
the receiving end because the drafts received by him
were forwarded to M&MC Ltd., yet, he did not receive
the tractor
vehicle for effecting its delivery to
customer Arvind Araddhye. Similarly, he alleges that
Crime No. 31/1997 registered on basis of complaint
lodged by customer Yunus Kisanchandra Ahuja at
Tofkhana Police Station, Ahmednagar, does not make out
any offence against him because he did not receive any
demand draft from the said customer.
9. Briefly stated, it is the case of M&MC Ltd and
others that Ramnivas Bhandari, proprietor of Nath
Automobiles was not authorized to accept the orders
for tractors after termination of dealership agreement
vide letter dated 31-07-1996. There was no business
relationship between them. Therefore, Ramnivas
Bhandari had no authority to accept the demand drafts
and cheques for M&MC Ltd. The dealership agreement
was not revived due to his failure to comply with the
conditions and, particularly, since he never furnished
Letter of Credit for Rs. 20 lacs. There were several
complaints received by M&MC Ltd. about malpractices
adopted by him in his conduct of the business. He
filed Suit (R.C.S. No. 1405/1996) for injunction
with a view to pressurize M&MC Ltd. He also filed yet
another Suit (R.C.S. No. 44/1997) for restraining
M&MC Ltd. from appointing any other dealer for
Aurangabad district and for mandatory injunction to
continue him as dealer. He could not get success.
So, he filed false and frivolous report with the
police,
but the police did not find any substance in
his complaint. He thereafter instituted the private
complaint case without any substantial reason. The
private complaint case (R.C.C. No. 104/1998) is
outcome of malice and would amount to abuse of process
of the Court. The stance of M&MC Ltd. and others is
that the twelve (12) demand drafts shown in the
private complaint case were never tendered by
complainant - Ramnivas Bhandari and were, in fact,
received from M/s Wasan Automobiles, under its
covering letters. It is asserted that complainant -
Ramnivas Bhandari falsely alleged that he delivered
the demand drafts to M&MC Ltd. It is further asserted
that due investigation was conducted into the first
information report lodged by complainant Ramnivas
Bhandari and it was revealed that the demand drafts
were actually sent by M/s Wasan Automobiles and the
vehicles were delivered to Nath Automobiles which were
given to the concerned customers. Thus, according to
M&MC Ltd. and others, complainant Ramnivas Bhandari
duped his customers and unnecessarily implicated them
in a false private complaint case. Consequently, they
urged to quash the said complaint case as well as the
first information reports lodged by the customers.
10. Mr. Shirish Gupte, learned Senior Counsel,
appearing for M&MC Ltd and others, would submit that
the record clearly goes to pin-point mischief
committed by
ig complainant Ramnivas Bhandari, the
ex-dealer of M&MC Ltd. He would submit that there was
no privity of contract between the customers who had
placed orders with the dealer and M&MC Ltd. For,
their internal transactions were on principal to
principal basis. He would point out from the recitals
of the complaint that Nath Automobiles was not agent
of M&MC Ltd. and all their transactions were on cash
payment basis. He would also point out that
dealership of Ramnivas Bhandari was duly terminated as
per letter dated 31-07-1996 due to his misconduct in
the dealership business. He contended that the
private complaint case instituted by the dealer -
Ramnivas Bhandari - is no short of abuse of process of
the Court. He would submit that no offence is made
out from the averments made in the complaint. He
would further submit that the learned Magistrate ought
not to have issued the process without proper
verification of the fact situation pertaining to
sending of the twelve (12) demand drafts by the dealer
- Ramnivas Bhandari. Per contra, Mr. S.M. Godsay,
learned counsel, appearing for dealer - respondent No.
3 would submit that the orders were accepted by the
dealer while his application for continuation of the
dealership was pending and, therefore, it was duty of
M&MC Ltd. to provide the vehicles as per the demand
drafts forwarded to it. He would submit that the
averments in the private complaint case may be proved
during
the trial, but the same cannot be discarded at
the inception. He argued that Ramnivas Bhandari was
duped by M&MC Ltd. in connivance with M/s Wasan
Automobiles and, therefore, issuance of the process in
the private complaint case is well justified.
11. What transpires from the record is that there
was complaint about malpractices adopted by the dealer
- Ramnivas Bhandari in his business of dealership.
His dealership agreement was terminated by letter
dated 31-07-1997. It is conspicuous that there was no
direct business agreement between the customers and
M&MC Ltd. I mean to say, there was no privity of
contract between M&MC Ltd. and the customers. The
practice was that Ramnivas Bhandari used to accept
orders from the customers as authorized dealer and
used to forward such orders to M&MC Ltd., with the
payments. The latter used to then supply the tractors
and trolleys as per the demand on receipt of entire
consideration amount. The dealer only used to get
commission. The dealer vaguely alleged that he sent
the twelve (12) demand drafts for Rs. 22,34,256/-,
alongwith the details of required tractor vehicles to
M&MC Ltd. He did not give details of such payments
alongwith details of forwarding letters, names of
customers for whom the payments were made and
acknowledgement received from M&MC Ltd. in the
context of each of such payment. No receipt of such
payment is produced on record.
12. The averments in the private complaint case
would show that since 1991 till March, 1996, the
business transactions were properly and smoothly
conducted. Obviously, it goes without saying that
there was absolutely no inducement held out by M&MC
Ltd. and others with dishonest intention to defraud
the dealer - Ramnivas Bhandari after April, 1996
onwards to make the payments. Nor it can be said that
the latter entrusted such amount with M&MC Ltd. of
which criminal breach of trust was committed. The
documents placed on record would show that M&MC Ltd.
received letters from M/s Wasan Automobiles alongwith
the relevant demand drafts shown in the complaint
application.
13. The record would show, including the tenor of
first information report (Crime No. I-218/1997)
lodged by one of the customers, namely, Vishwanath
Bala Sapkal that the demand drafts were forwarded to
M&MC Ltd. by M/s Wasan Automobiles. It is explicit
from the record that the dealer - Ramnivas Bhandari
allegedly indulged in malpractices in the conduct of
his business. He accepted demand drafts from his
customers. He was not authorized to deal in the
business after termination of the dealership
agreement. He had managed to take help of a broker by
name
Suwalal Chhallani. He gave the demand drafts of
his customers to said Suwalal Challani (broker). The
latter submitted those demand drafts to M/s Wasan
Automobiles. A copy of letter (Annex-E) dated 21st
May, 1997 would show that details of payments obtained
from the broker were submitted by M/s Wasan
Automobiles to M&MC Ltd. Thus, it prima facie seems
that the tractors delivered to M/s Wasan Automobiles
were given to the said broker who in his turn, sold
them to third parties with connivance of the ex-dealer
- Ramnivas Bhandari. It appears that police
investigation was carried out in the context of first
information lodged by Ramnivas Bhandari against M&MC
Ltd. and others. It appears further that there was
no privity of contracts as such between the customers
who are agriculturists but ultimately six (6) of them
were provided with the tractors by the M&MC Ltd. on
humanitarian ground. An affidavit is filed by Ravi
Mathur, an officer of M&MC Ltd. in this behalf.
14. Coming to the averments in the complaint of
Ramnivas Bhandari, it need not be reiterated that
except vague statement that the twelve (12) demand
drafts were forwarded by him to M&MC Ltd., there is
nothing to show that actually, he made such payments.
Indeed, after 31st July, 1996, he had no legal
authority to work as dealer. Assuming that he was
hoping to get continuation of dealership, then also it
does not
stand to reason that he would forward the
demand drafts without maintaining proper office
record, obtaining of acknowledgement and receipts for
such payments. It is pertinent to note that in his
Suits, which were filed in the Court of learned Civil
Judge (S.D.), Aurangabad, he never asserted that he
had forwarded the demand drafts worth Rs. 22,34,256/-
to M&MC Ltd. and, yet, had not received the vehicles.
It is further worthy to be noted that his letter dated
01-10-1996 (P-165) also does not show the payments
which were made before issuance of the said letter.
The averments in para 3 of the complaint case would
show that atleast five (5) such demand drafts were
issued prior to 01-10-2006. Had he been deprived of
the delivery of tractors pertaining to such five (5)
demand drafts, then he would have mentioned such a
fact in his letter regarding fresh proposal put forth
by him. On the other hand, he assured that the
delivery of tractors would be cleared regarding the
orders received uptill 30th September, 1996. He
further assured that there will be no complaint from
the customers regarding delivery and payment in case
the proposal for dealership is accepted by M&MC Ltd.
15. There appears good deal of substance in the
contention of Mr. Gupte that the ex-dealer instituted
the private complaint case by way of pressure tactics
when he could not get any relief in his Suits. There
is no averment
ig in the complaint that any false
representation was made to the complainant - Ramnivas
Bhandari on the basis of which he was induced to part
with alleged twelve (12) demand drafts. The
provisions of Section 409 are also not attracted in as
much as M&MC Ltd. is neither a public servant,nor a
banker or broker or agent. The said Company could not
be termed as agent vis-a-vis complainant - Ramnivas
Bhandari. Obviously, there is no reason to infer that
criminal breach of trust was committed in respect of
the amounts sent under the twelve (12) demand drafts
even if it is to be assumed that such averments
represent a disputed question of fact. There is no
tangible evidence to infer commission of any forgery
or fabrication of any document by M&MC Ltd. and
others. Therefore, the criminal complaint for
offences punishable under section 465, 467, 468 and
471 of the I.P. Code is without foundation. Under
these circumstances, the private complaint application
of Ramnivas Bhandari is an action which amounts to
abuse of process of the Court.
16. The learned Senior Counsel seeks to rely on
"Hridaya
Hridaya Ranjan Prasad Verma and others vs. State of
Bihar and another" (2000) 4 Supreme Court Cases 168.
The Apex Court held that where allegations in the
complaint read as a whole did not indicate, expressly
or impliedly, any intentional deception on the part of
the appellants
ig right from the beginning of the
transaction, continuing the criminal proceedings
against the appellants would amount to an abuse of
process of the Court. The exercise of powers under
section 482 of the Criminal Procedure Code in such
case was held proper. It was held that the categories
of cases enumerated in "State
State of Haryana v. Bhajan
Lal" 1992 Supp (1) SCC 335,
335 were not exhaustive.
Reliance is also placed on "Uma
Uma Shankar Gopalika vs.
State of Bihar and another" (2005) 10 Supreme Court
Cases 336.
336 The Apex Court held that where the
complaint did not disclose any offence either under
section 420 or 120-B of the I.P. Code and that the
averments showed existence of only a civil dispute,
allowing of investigation to continue would amount to
abuse of process of the Court. Further reliance is
placed on "Ashok
Ashok Chaturvedi and others vs. Shitul H.
Chanchani and another" (1998) 7 Supreme Court Cases
698,
698 in which similar view is expressed.
17. In "Pepsi
Pepsi Foods Ltd. and another vs. Special
Judicial Magistrate and others" (1998) 5 Supreme Court
Cases 749,
749 the Apex Court held that power of the Court
to discharge the accused at the stage of framing of
charge or existence of remedy of appeal and revision
would not create a bar to invoke the jurisdiction of
the High Court under Article 227 of the Constitution
or section 482 of the Criminal Procedure Code. It is
further held
that while summoning an accused, the
Magistrate ought to apply judicial mind to the facts
of the case and law applicable thereto. It is
observed :
"Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not
that the complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate summoning
the accused must reflect that he has applied
his mind to the facts of the case and the law
applicable thereto. He has to examine the
nature of allegations made in the complaint
and the evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning of the accused. The
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant and
his witnesses to elicit answers to find out
the truthfulness of the allegations or
otherwise
ig and then examine if any offence is
prima facie committed by all or any of the
accused."
18. The learned advocate for the applicant, seeks
to rely on "Alpic
Alpic Finance Ltd. vs. P. Sadasivan and
another" (2001) 3 Supreme Court Cases 513,
513 wherein the
Apex Court observed that merely because remedy by way
of civil suit is available, would not be an impediment
in maintaining criminal complaint, yet, such remedy
would be available provided the complaint discloses
the ingredients of the offences alleged. It was held
that the facts in the given case did not show element
of deception or fraud or dishonest inducement. Hence,
the complaint was held liable to be quashed.
19. In "B.S.
B.S. Joshi and others vs. State of
Haryana and another" (2003) 4 Supreme Court Cases 675,
the Apex Court considered the scope of section 482 of
the Criminal Procedure Code. It has been held that
the categories of cases in which such power can be
exercised are not restricted to those referred to in
"Bhajan
Bhajan Lal's"
Lal case (State
State of Haryana v. Bhajan Lal)
Lal
1992 Supp (1) SCC 335.
335 In "Zandu
Zandu Pharmaceutical Works
Ltd.and others v. Mohd. Sharaful Haque and another"
(2005) 1 Supreme Court Cases 122,
122 the Apex Court held
that no hard and fast rule can be laid down for
exercise of the extraordinary jurisdiction enumerated
in section 482
ig of the Criminal Procedure Code. In
"Ramesh
Ramesh and others v. State of T.N." (2005) 3 Supreme
Court Cases 507,
507 the Apex Court considered the scope
of section 482 of the Criminal Procedure Code in the
context of the facts of the said case.
20. Mr. Godsay, learned Counsel, referred to
"Pratibha
Pratibha vs. Rameshwari Devi and others" 2007 DGLS
(Cri.) Soft 28, "Renu Kumari vs. Sanjay Kumar and
others" 2008 DGLS (Soft) 288, "Suryalakshmi Cotton
Mills Ltd. vs. Rajvir Industries Ltd. & others"
2008 DGLS (Soft) 31 and "State of Orissa and another
vs. Saroj Kumar Sahoo" 2005 DGLS (Cri.) Soft 75. In
"Suryalakshmi
Suryalakshmi Cotton Mills Ltd. vs. Rajvir
Industries Ltd. & others"
others (supra), the Apex Court
held that ordinarily, a defence though, a plausible
one, should not be considered while deciding the
application under section 482 of the Criminal
Procedure Code. It is further observed that the High
Court should not enter in to disputed questions of
fact. At the same time, the Apex Court held that the
documents of unimpeachable character can be considered
to find out whether continuance of the criminal
proceedings would amount to an abuse of process of the
Court or that the complaint is merely filed to harass
the accused. It is observed :
"Ordinarily, a defence of an accused although
appears
igto be plausible should not be taken
into consideration for exercise of the said
jurisdiction. Yet again, the High Court at
that stage would not ordinarily enter into a
disputed question of fact. It, however, does
not mean that documents of unimpeachable
character should not be taken into
consideration at any cost for the purpose of
finding out as to whether continuance of the
criminal proceedings would amount to an abuse
of the process of Court or that the complaint
petition is filed for causing mere harassment
to the accused. While we are not oblivious of
the fact that although a large number of
disputes should ordinarily be determined only
by the civil courts, but criminal cases are
filed only for achieving the ultimate goal
namely to force the accused to pay the amount
due to the complainant immediately. The
Courts on the one hand should not encourage
such a practice; but, on the other, cannot
also travel beyond its jurisdiction to
interfere with the proceeding which is
otherwise genuine. The Courts cannot also
lose sight of the fact that in certain
matters, both civil proceedings and criminal
proceedings would be maintainable."
21. It is
ig not necessary to elaborately set out
ratio of other case-law referred to by Mr. Godsay.
Suffice it to say that the criminal prosecution may be
quashed when there is material on record to infer that
continuation thereof would amount to abuse of process
of the Court. It may be quashed when it is found that
continuation thereof would result into undue
harassment of the accused persons and cause
miscarriage of justice. Considering the fact
situation obtained in the matters under consideration,
I am of the opinion that continuation of the private
complaint case instituted by complainant Ramnivas
Bhandari would amount to abuse of process of the
Court. For, the averments in the complaint and the
other unimpeachable documentary evidence would show
that no offence is made out against M&MC Ltd. and
others. So also, the continuation of first
information reports (Crimes No. I-196/1997 and
I-218/1997) against applicants Anand Mahindra and
others would amount to abuse of process of the Court
in as much as there was no privity of contract between
the concerned complainants and M&MC Ltd. The
application (Criminal Application No. 472/1999) is
only to allow the production of certain documents,
which needs to be allowed in the interest of justice.
In this view of the matter, all the above petitions in
first group will have to be allowed.
22. Corollary
ig of foregoing discussion is that the
petitions in the second group, except Criminal
Application No. 1700/1997, must fail. The first
information reports lodged against ex-dealer Ramnivas
Bhandari, by the customers, cannot be quashed. For,
admittedly, he accepted demand drafts from them and
failed to deliver the tractor vehicles as promised by
him. Secondly, it appears that he gave the demand
drafts in question to a broker, who, in turn, gave
them to M/s Wasan Automobiles. There is prima facie
evidence to infer financial misdeeds committed by the
ex-dealer - Ramnivas Bhandari in this behalf.
Consequently, the petitions in the second group,
except Criminal Application No. 1700/1997, will have
to be dismissed.
23. In the result, all the petitions in the first
group (i.e. Criminal Writ Petition No. 108/1999,
Criminal Application No. 472/1999, Criminal
Application No. 2146/1997 and Criminal Application
No. 2278/1997) are allowed. The private complaint
case (R.C.C. No. 104/1998) and the first information
reports (Crime No. I-196/1997 and I-218/1997) are
quashed as against applicants. The petitions in the
second group (i.e. Criminal Applications No.
1648/1998 and 1869/1997) are dismissed. However,
Criminal Application No. 1700/1997 in the second
group is allowed in terms of interim order rendered
therein. The
ig anticipatory bail granted therein is
continued till filing of charge-sheet or final report
as the case may be.
[ V.R. KINGAONKAR ]
JUDGE
NPJ/CRIWP108-99-GROUP
