Gulam Sadeq S/O Gulam Subhani ... vs The State Of Maharashtra And Anr
2016 Latest Caselaw 5603 Bom

                                    1           CRWP-425-16.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                    
                      BENCH AT AURANGABAD
              CRIMINAL WRIT PETITION No.425 OF 2016




                                            
                                AND
               CRIMINAL APPLICATION NO.2191 OF 2016

    Gulam Sadeq s/o. Gulam Subhani 




                                           
    Farooqi, Age 32 years, 
    Occ. Business, r/o. Bashir Gunj, 
    Near S.P. Office,
    Beed, Dist. Beed                            ..Petitioner 




                                   
                  Vs.
    1.    The State of Maharashtra
                              
          Through Police Inspector,
          Satara Police Station,
          Satara, Aurangabad
                             
    2.    Asfahan s/o. Julfiqaruddin 
          Siddiqui, Age 42 years, 
          Occ. Business, 
          r/o. Plot No.41, Jalan Nagar,
      


          Aurangabad                            ..Respondents
   



                             --
    Mr.R.R.Mantri, Advocate for petitioner
    Mr.S.W.Munde, A.P.P. for respondent no.1
    Mr.Mohd. Waseemullah, Advocate for respondent no.2





                             --
                           CORAM : S.S. SHINDE AND
                                   SANGITRAO S. PATIL, JJ. 
                     RESERVED ON : AUGUST 26, 2016      
                   PRONOUNCED ON : SEPTEMBER 27, 2016 





    JUDGMENT (PER SANGITRAO S. PATIL, J) :

Rule. Rule made returnable forthwith.

Heard finally with consent of the parties.

2 CRWP-425-16.odt

2. The petitioner has prayed for quashing of

the Charge Sheet bearing No.38 of 2016 presented

in the Court of the learned Judicial Magistrate,

First Class (5th Court), Aurangabad on 02.04.2016

arising out of Crime No.352 of 2015 registered

against him in Police Station, Satara, Aurangabad

for the offences punishable under Sections 420 and

406 read with Section 34 of the Indian Penal Code

("I.P.C." for short).

3. The petitioner and respondent no.2 are

doing the business of scrap material at Beed and

Aurangabad respectively.

4. Respondent no.2 lodged a report on

18.11.2015 against the petitioner, his brother

Gulam Tarek Farooqi and Mufti Musaleoddin Khan,

alleging inter-alia that on being strongly

recommended by Mufti Musaleoddin Khan for becoming

a partner with the petitioner in the transaction

3 CRWP-425-16.odt

of purchasing 700 tonnes of scrap material of

Maharashtra Jeevan Pradhikaran, Karad, Dist.

Satara ("the Pradhikaran", for short), respondent

no.2 met the petitioner at Karad, Dist. Satara on

16.07.2013, when the petitioner demanded an amount

of Rs.31,50,000/- in order to enable him to fill-

up a tender for purchase of 700 tonnes of scrap

material of the Pradhikaran. The petitioner

assured that he would treat respondent no.2 as a

partner and pay him profit at the rate of

Rs.1,500/- per ton of scrap material.

Accordingly, respondent no.2 paid the petitioner

the amount of Rs.12,50,000/- at his own house at

Aurangabad on 17.07.2013. He further remitted an

amount of Rs.19,00,000/- through R.T.G.S. in the

account of the petitioner on 18.07.2013. An

agreement came to be executed between the

petitioner and respondent no.2 at Pune on that

day. At that time, the petitioner handed over two

cheques of Rs.10,00,000/- each to respondent no.2

4 CRWP-425-16.odt

by way of security. The petitioner had informed

respondent no.2 on 18.07.2013 that he would get an

order for lifting the scrap material within seven

days.

5. Respondent no.2 contacted the petitioner

on his mobile phone after seven days. At that

time, the petitioner informed respondent no.2 that

seven days more would be required for getting the

order for lifting the scrap material. Respondent

no.2 again tried to contact the petitioner on his

mobile phone, however, the mobile phone of the

petitioner was found to be switched off.

Respondent no.2, therefore, entertained suspicion

against the petitioner. He went to the office of

the Pradhikaran at Karad, Dist. Satara. He did

not find any scrap material lying there. On making

further inquiry, he came to know that the scrap

material was taken away and disposed of by the

petitioner prior to 15 days.

5 CRWP-425-16.odt

6. Since respondent no.2 had entered into

the above-mentioned transaction with the

petitioner on the strong recommendations of Mufti

Musaleoddin Khan, he went to the said Mufti

Musaleoddin Khan at Beed, however, he gave evasive

answers to respondent no.2. The cheques given by

the petitioner to respondent no.2 got bounced.

Respondent no.2, therefore, realised that the

petitioner, in collusion with his brother Gulam

Tarek Farooqi and the said Mufti Musaleoddin Khan,

cheated him of Rs.31,50,000/- on the false

representation that he would be getting Rs.1,500/-

per ton of scrap material as a share in the

profit. He, therefore, lodged the First

Information Report ("F.I.R." for short) against

the petitioner, Gulam Tarek Farooqi and Mufti

Musaleuddin Khan.

7. On the basis of that F.I.R., Crime No.352

of 2015 came to be registered against the

6 CRWP-425-16.odt

petitioner and the above-named two accused persons

for the offences punishable under Sections 420 and

406 read with Section 34 of the I.P.C. The

investigation followed. Statements of the

witnesses were recorded. The documents concerned

came to be seized. After completion of the

investigation, the Investigating Officer found

sufficient grounds to proceed against the

petitioner and two other accused persons. He,

therefore, filed the charge sheet against them,

which has been sought to be quashed by this

Criminal Writ Petition under Article 226 of the

Constitution of India.

8. The learned Counsel for the petitioner

submits that the dispute between the parties is

purely of a civil nature. An agreement in respect

of the scrap business was executed by the

petitioner in favour of respondent no.2 on

18.07.2013. The cheques given by the petitioner to

7 CRWP-425-16.odt

respondent no.2 are alleged to have been

dishonoured in the month of March-2014. The F.I.R.

has been lodged on 18.11.2015 i.e. after about two

and half years from the date of execution of the

agreement. This delay has not been explained by

respondent no.2. He submits that as per the case

of respondent no.2 himself, the cheques were given

by way of security, which were misused by

respondent no.2. He submits that the ingredients

of the offences punishable under Sections 406 and

420 of the I.P.C. are totally absent in the F.I.R.

Only because the cheques issued by the petitioner

were dishonored, it cannot be said that the

petitioner cheated respondent no.2. According to

him, the civil dispute cannot be dragged into the

criminal court. He contends that respondent no.2

lodged the report against the petitioner

maliciously with the sole intention to grab money

from him by pressurising him. Relying on the

decisions in the cases of M/s.Indian Oil

8 CRWP-425-16.odt

Corporation Vs. M/s. NEPC Indian Ltd. and ors.,

AIR 2006 SC 2780(1) and Vir Prakash Sharma Vs.

Anil Kumar Agarwal and anr., (2007)7 SCC 373, he

submits that in the absence of the allegations in

the F.I.R. about existence of ingredients of the

offences punishable under Sections 406 and 420 of

IPC, the criminal proceedings instituted against

the petitioner after filing of the Charge Sheet by

respondent no.1, are liable to be quashed and set

aside. According to him, filing of the said

criminal proceedings would be an abuse of process

of law. He, therefore, submits that the

proceedings instituted against the petitioner may

be quashed and set aside.

9. Respondent no.2 filed reply and opposed

the petition. Relying on the contents of the said

reply, the learned Counsel for respondent no.2

submits that the petitioner made a false

representation that respondent no.2 would be given

a share in the profit at the rate of Rs.1500/- per

9 CRWP-425-16.odt

ton of the scrap material weighing 700 tons and

induced respondent no.2 to part with a huge amount

of Rs.31,50,000/- in order to enable the petitioner

to get the contract of purchase of the scrap

material from the Pradhikaran. After about 7 days

of paying that amount to the petitioner, respondent

no.2 asked him of his share in the profit, whereon

the petitioner told him that he would be getting an

order for lifting the scrap material within next

seven days thereof. However, after passing of 7

days when respondent no.2 inquired in the office of

the Pradhikaran, he came to know that the

petitioner had not at all entered into any contract

with the Pradhikaran for purchase of scrap

material. He submits that the petitioner

intentionally made a false statement of having not

lifted the scrap material, though he actually had

not entered into any contract to lift the same.

These facts themselves are sufficient to disclose

the intention of the petitioner to chit respondent

10 CRWP-425-16.odt

no.2 since inception. He submits that the

petitioner issued two cheques in the sum of

Rs.10,00,000/- each to respondent no.2 and did not

maintain sufficient funds in his account when they

were presented for encashment. This fact also

indicates that the petitioner had intended to cheat

respondent no.2 since inception. He further submits

that the petitioner committed breach of the

assurance given by him to respondent no.2 to repay

his amount and further give the share in the profit

in terms of the agreement dated 18.07.2013 and

thereby committed criminal breach of trust. He

submits that the facts and circumstances emerging

from the papers of investigation clearly disclose

ingredients of the offences punishable under

Sections 420 and 406 of the I.P.C. Therefore, after

completion of the investigation, Charge Sheet has

been filed against the petitioner and two others.

He, therefore, prays that the petition may be

dismissed.

11 CRWP-425-16.odt

10. The learned APP appearing for respondent

no.1 supports the case of respondent no.2 and prays

that the petition may be dismissed.

11. In paragraph 10 of the judgment in the

case of M/s. Indian Oil Corporation (supra), it has

been held as under :-

"10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases.

This is obviously on account of a prevalent impression that civil law

remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading

to irretrievable break down of marriages/ families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any

effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."

12 CRWP-425-16.odt

Keeping in view the above-referred observations, it

will have to be seen as to whether the ingredients

of the offences punishable under Sections 406 and

420 of the I.P.C. are disclosed from the facts and

circumstances of the present case.

12. The contents of the report show that

contents of the report, that on 16.07.2013,

respondent no.2 met the petitioner at Karad,

whereon the petitioner represented that he had

filled-up a tender for purchase of the scrap

material from the Pradhikaran and for that purpose,

he was in need of Rs.31,50,000/-. He assured

respondent no.2 to give share in the profit at the

rate of Rs.1500/- per ton of the scrap material

having total weight of 700 tonnes, in case the said

amount would be paid to him. It is mentioned in the

F.I.R. that relying on that assurance, respondent

no.2 paid the amount of Rs.12,50,000/- in cash to

the petitioner on 17.07.2013 at his own house at

13 CRWP-425-16.odt

Aurangabad and remitted the amount of

Rs.19,00,000/- from his own account to the account

of the petitioner through R.T.G.S. on 18.07.2013.

The bank account of the petitioner standing in the

name of his business i.e. Saima Scrap Material

Kharedi Vikri Kendra, Beed, shows that the amount

of Rs.19,00,000/- was actually credited on

18.07.2013 through R.T.G.S. The petitioner is

stated to have given two cheques in the sum of

Rs.10,00,000/- each to respondent no.2 by way of

security. However, the same were dishonored for

want of sufficient funds in the account of the

petitioner.

13. The agreement dated 18.07.2013 executed by

the petitioner in favour of respondent no.2

contains that the petitioner had received

Rs.19,00,000/- from respondent no.2 on 18.07.2013

and that the petitioner issued two blank cheques to

respondent no.2 by way of security. The said

14 CRWP-425-16.odt

agreement also contains about the proposed scrap

business, which was to be conducted by the

petitioner and respondent no.2 jointly.

14. The above facts clearly show that the

petitioner, at least, admits that he received the

amount of Rs.19,00,000/- from respondent no.2 on

18.07.2013 on the assurance that the said amount

would be repaid along with the share in the profit

at the rate of Rs.1500/- per ton of the scrap

material weighing 700 tones. There is a specific

recital in the said agreement that the petitioner

has actually taken the contract of lifting 700

tones of the scrap material. It is the specific

case of respondent no.2 that the said scrap

material was to be lifted from the office of the

Pradhikaran, at Karad.

15. The learned Counsel for respondent no.2

pointed out to the letter dated 11.01.2016 issued

15 CRWP-425-16.odt

by the Executive Engineer, Maharashtra Jeevan

Pradhikaran, Karad, wherein it is specifically

mentioned that no tender notice was published for

sale of the scrap material by his office, no tender

was given in favour of Saima Scrap Material Kharedi

Vikri Kendra, Beed and that no scrap material was

sold out by his office in the year 2013. If that be

so, it is prima facie clear that on the false

pretext of giving share in the profit to respondent

no.2 in the alleged scrap business, the petitioner

induced him to part with a huge amount. It is prima

facie clear that the agreement dated 18.07.2013 was

executed by the petitioner with an ulterior motive

to induce respondent no.2 to pay him a huge amount

which, otherwise would not have been paid to him by

respondent no.2. The petitioner seems to have

issued two cheques in favour of respondent no.2 to

create confidence in the mind of respondent no.2

about the genuineness of the reasons for which the

amount was paid by respondent no.2 to the

16 CRWP-425-16.odt

petitioner. These circumstances prima facie

disclose that the petitioner had an intention to

deceive respondent no.2 since inception. In our

view, the facts disclosed in the F.I.R. and the

papers of the investigation prima facie show the

ingredients of the offence of cheating under

Section 420 of the I.P.C.

16.

For constituting the offence of criminal

breach of trust, entrustment of the property is an

essential ingredient. In the present case, as seen

from the agreement dated 18.07.2013, there is prima

facie evidence to show that at least the amount of

Rs.19,00,000/- was entrusted by respondent no.2

with the petitioner. The reasons for entrustment of

the said amount are already stated above. The

petitioner had assured respondent no.2 to return

the said amount of Rs.19,00,000/- along with the

share in the profit at the rate of Rs.1500/- per

ton in respect of 700 tonnes of scrap material.

17 CRWP-425-16.odt

The petitioner had issued two cheques in favour of

respondent no.2 towards security of the said

amount. Indisputably, the said cheques were

dishonoured for want of sufficient funds in the

account of the petitioner. There is nothing on

record to show that the petitioner returned the

amount that was taken by him from respondent no.2.

As such, he converted the said amount for his own

use. It is, thus, prima facie clear that the

petitioner committed criminal breach of trust by

dishonestly converting the said amount for his own

use that was entrusted to him by respondent no.2.

17. In the case of Vir Prakash Sharma (Supra),

it has been held that non-payment or underpayment

of the price of goods by itself does not amount to

commission of offence of cheating or criminal

breach of trust and that it is essentially a civil

dispute. In the present case, respondent no.2 has

not alleged the offence of cheating and criminal

18 CRWP-425-16.odt

breach against the petitioner merely because the

cheques issued by the petitioner were dishonoured,

but, as stated above, the petitioner induced

respondent no.2 to part with a huge amount on the

false pretext of giving him a share in the profit

in the transaction of 700 tonnes of scrap material

of the Pradhikaran, which, in fact, was not offered

for sale in the year 2016 by the said Pradhikaran.

In view of the distinguishing facts in the present

case, the judgment in the case of Vir Prakash

Sharma (supra) would not helpful to the petitioner

to advance his case.

18. The contention about the delay in lodging

the F.I.R. cannot be considered at this stage, more

particularly when the case is depending on the

documentary evidence. The petitioner, however, may

agitate this contention before the trial Court at

the appropriate stage.

19 CRWP-425-16.odt

19. In the above facts and circumstances of

the case, we are not inclined to exercise the

powers under Article 226 of the Constitution of

India to quash the criminal proceedings instituted

against the petitioner. We make it clear that the

observations made in the forgoing paragraphs would

not influence the merits of the case to be finally

considered by the Trial Court. In the result, the

order :-

(i) The Criminal Writ Petition is dismissed.

    (ii)             Rule stands discharged.
      


    (iii)            Criminal   Application   No.2191   of   2016 
   



                     stands disposed of.
     





    [SANGITRAO S. PATIL, J.]                    [S.S. SHINDE, J.]


    kbp