Bombay High Court
V. Selvapoathy vs The State Of Maharashtra on 19 December, 2012
Bench: A. H. Joshi, S.P. Deshmukh
1 Criwp. No.584/08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.584 OF 2008
V. Selvapoathy S/o PV. Venkataswamy
Naidu, Age : 58 years, Occ. Business,
R/o At Present Plot No.5,
Co-operative Colony, Uppalipalayan,
At Post Coimbatore, Tq. & Dist.
Coimbatore ..PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Home Department,
Mantralaya, Mumbai
2. The Police Inspector,
M.I.D.C. Police, Latur,
Tq. & Dist. Latur
3. Tina Oil Chemicals Ltd.,
Through its Factory Manager
Shri Rajendra Dattatraya
Nimborkar, Age : 37 years,
Occ. Service, R/o Tina Oil and
Chemicals Ltd., M.I.D.C., Latur,
Dist. Latur ..RESPONDENTS
Mr R.N. Dhorde, Senior Advocate with Mr V.R. Dhorde,
Advocate for the petitioner;
Mrs V.A. Shinde, A.P.P. for respondents no.1 & 2;
Mr H.F. Pawar, Advocate for respondent no.3
WITH
CRIMINAL WRIT PETITION NO.159 OF 2009
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2 Criwp. No.584/08
Pulliampatti Kasturiswamy,
P.K. Balchandran,
AGe : 58 years, Occu.Business,
R/o 2/77, Puliampatti,
Palladam Taluk,
Tiruppur District,
Tamilnadu ..PETITIONER
VERSUS
1. The State of Maharashtra
Through its Principal Secretary,
Home Department,
Mantralaya, Mumbai
2. The Police Inspector,
MIDC Police, Latur,
Tq. & Dist. Latur
3. Rajendra Dattatraya Nimbhorkar,
Age 37 years, Occu.Service
Factory Manager,
R/o Tina Oil and Chemical Ltd.,
MIDC Latur ..RESPONDENTS
Mr S.S. Panale, Advocate for the petitioner;
Mrs V.A. Shinde, A.P.P. for respondents no.1 & 2;
Mr H.F. Pawar, Advocate for respondent no.3
CORAM : A.H. JOSHI AND
SUNIL P. DESHMUKH, JJ.
DATE : December 19, 2012
ORAL JUDGMENT (PER A.H. JOSHI, J.)
1. In both these petitions, the challenge is common.
2. The prayer is for quashing first information
report in C.R. No.98 of 2008, registered at M.I.D.C.
Police Station, Latur, for offences punishable under
sections 420, 406 read with sec. 34 of the Indian
Penal Code and charge-sheet filed in furtherance
thereto.
3. Both these petitions were heard at length.
4. The petitions had remained pending for admission
hearing for a considerable period. Hence, by consent
of parties, Rule is made returnable forthwith and is
heard.
5. Though the petitions, as originally filed,
consisted of challenge to the charge-sheet, due to the
advice rendered to them, the petitioners they have
amended the petitions and incorporated challenge to
the first information report. In view of this
development, the petitions were listed before us.
6. As we have seen, the first information report
consists of disclosure that it is registered under
sections 420, 406 and 434 of the Indian Penal Code.
7. The text of the first information report which is
relied upon by the complainant, which version is
reiterated reads as follows :-
".......vkt jksth vkEgh iks- Bk.ks veaynkj Eg.kwu M;qVhr gtj
vlrkauk ;krhy fQ;kZnh iks-LVs- ;sowu ys[kh fQ;kZn fnyh R;kpk etdqj
[kkyhyizek.ks %&
ojhy fo"k;kuqlkj eh vtZnkj fguk vkWbZy vWUM dsfedYl fy- ,e- vk;- Mh-
Lkh- ykrwj ;sFks QWDVjh eWustj Eg.kwu dke djhr vkgs- vkeP;k QWDVjhe/;s ---
rsy b- oLRqps mRiknu gksrs- lnjhy >kysys mRiknu nykyk ekQZr fdaok ljG
ekx.kh dsysY;k daiU;kuk fodzh dsyh tkrs- lnjpk fodzhpk O;olk; gk ykrwj
;sFkhy fguk vk+WbZYl vWUM dsfedYl fy- ;k daiuhP;k dk;kZy;krp gksrks-
fnukad [email protected]@07 fn- [email protected]@07 fn- [email protected]@07 ;k fno'kh es- ik;ksfuvj
fQMl vWUM iksYVªh izksMDVl ¼izk½ fy- iksxywj rh:iwj rkyqdk ftYgk dksbZerwj
fy- rkfeGukMw jkT; ;k daiuhps ¼1½ Jh fuyk d".ku psvjeu 1½ Jh j?kqirh
dk;Zdkjh Lakpkyd 3½ Jh- fcEeFkku dk;Zdkjh lapkyd 4½ lapkyd Jh larks"kth
psvjeu fuyd`".ku ;kapk eqyxk vkgs- 5½ Jh- th- uVjktu tujy eWustj
--- ;kauh R;kps nyky o lk{khnkj ghu fctusl lksjls iw-izk-iks- dksbZerwj ;kaP;k
ekQZr ojhy rkjs[kauk i'kq[kkn;klkBh ekx.kh uksan dsyh o R;k ekx.kh izek.ks
osGksosGh fn- [email protected]@07 rs [email protected]@07 i;Zr ,dq.k osGk 78]01][email protected]&
¼v{kjh vB;kgRrj yk[k ,d gtkj lRrspkGhl :i;s½ R;kaP;k vkWMZj dUQjes'ku
o djkjkP;k vVh izek.ks iqjoBk dj.;kr vkyk- ;k iqjoB;kP;k fcykph ;s.ks
vlsysyh jDde djkjkr fnysY;k eqnrhizek.ks fnukad [email protected]@07 P;k djkjkps
eky feGkysiklwu 35 fnolkar fnukad [email protected]@07 P;k djkjkps eky
feGkysiklqu 35 fnolkar fnukad [email protected]@07 P;k djkjkps eky feGkY;kiklwu
60 fnolkr ns; gksrs- R;k vuq"kaxkus ekÖ;k daiuhus R;koj fo'okl Bsowu
R;kizek.ks Vªd o jsYosus lnjpk eky ikBfoysyk vkgs- R;kP;k VªkUliksVkZP;k
ikoR;k fQ;kZnhlkscr tksMY;k vkgsr o R;k izek.ks R;kauh lnjpk eky lksMowu
?ksowu rkC;kr ?ksryk vkgs- lnj ekykP;k ,dq.k jDdesiSdh :- 61]23]039-43
¼:i;s ,dl"V yk[k rsohl gtkj ,dks.kpkGhl :i;s +=spkGhl iSls
QDr½ ,so<h jDde laca/khr daiuh dMwu fnuakd [email protected]@07 jksth ns; gksrh-
daiuhus ek>k o ekÖ;k daiuhpk vU;k;kus fo'okl?kkr dsyk vkgs- ekÖ;k
daiuhus iqjfoysyk eky vkiY;k rkC;kr ?ksowu iks;kfuvj daiuhsps ojhy 1 rs 5
inkf/kdk&;kauh laxuer d:u Lor%P;k Qk;n;klkBh d:u vU;k;kus
fo'okl ?kkr d:u ns; jDde u nsowu ek>h o ekÖ;k daiuhph Qlo.kwd
dsyh vkgs-"
8. The portion contained in first information
report which, according to the petitioners describes
commission of offence, is underlined for convenience,
which is translated as follows :-
"... ... ... The goods were supplied as per
confirmed order and terms of agreement. The
amount of bill due towards this supply, as per
the time limit incorporated in the agreement
dated 25.1.2007 and dated 7.8.2007 was payable
within 35 days from the date of receipt of the
goods. As per subsequent agreement dated
8.10.2007 the amount due was payable within 60
days from the date of receipt of the goods. My
company believed in the promise and accordingly
dispatched the goods through truck and railway.
The transport receipts thereof are annexed to the
complaint. Accordingly, they got released the
goods and took them in their possession. Out of
the total amount of the said goods, an amount of
Rs.61,23,039=43 was due and payable from the
concerned company as on 20.10.2007. The said
company has committed breach of trust of mine and
my company. The abovenamed 1 to 5 office
bearers of Pioneer company, in furtherance of
their common intention, took the possession of
the goods supplied by my company and by not
paying the due amount they have cheated me and my
company, for their own benefit."
(Portion translated from paper-book page Nos.14 &
15)
9. After investigation, the charge-sheet is filed.
Text of the charge-sheet reiterates the version
contained in the first information report. Perusal of
statements of witnesses recorded under section 161 of
the Code of Criminal Procedure show that those also
contain a grievance which is concurrent and in echo,
namely :-
"that "the money payable for the goods sold is
not made over in compliance with the promise
between 35 and 60 days, respectively."
10. We have noticed that even if each and every word
and statement contained in the first information
report as well as charge-sheet and statements of the
witnesses as recorded by the Investigating Officer are
accepted to be true without further evidence, and on
that basis the offence of breach of trust is
registered, yet cheating, etc. is not disclosed.
11. As we have noticed, the grievance of the
petitioners falls squarely within the description of
the term "breach of promise to make the payment" in
terms of the stipulations i.e. breach of contract and
nothing beyond that.
12. There is no element of breach of trust involved,
seen from any angle. Therefore, continuation of
trial any further, would be sheerly abuse of process
of law, apart from the fact that the accused persons
will be vexed at law, which exercise is certainly
avoidable.
13. We are, therefore, satisfied that present is a
fit case where first information report as well as
charge-sheet, deserve to be quashed.
14. We, therefore, make Rule absolute in terms of
prayer clause (BB) in Criminal Writ Petition No.584 of
2008 and prayer clause (B-1) in Criminal Writ Petition
No.159 of 2009.
(SUNIL P. DESHMUKH, J.) (A.H. JOSHI, J.)
amj/criwp584.08
