Umashankar Prabhudayal ... vs Ratna Samy Elango And Ors
2021 Latest Caselaw 2563 Bom

     ssm                         1               19- cri.Appln.4317.04.doc

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPLICATION NO. 4317 OF 2004

Umashankar Prabhudayal Khandelwal & Anr.         ....Applicants.

              Vs.

Mr. Ratna Samy Elango & Ors.                     ....Respondents.

Mr. Shekhar Ingawale for the Applicants.
Mr. S.S. Hulke, APP for the Respondent-State.
None for the Respondent No.1.
                                    CORAM : A. S. GADKARI, J.

DATE : 9th FEBRUARY, 2021.

ORAL JUDGMENT:-

By the present Application under Section 482 of the Code of

Criminal Procedure, 1973 (for short, 'the Cr.P.C.'), the Applicants-Original

Accused Nos.1 and 2 in Criminal Case No.06-I & R/04 pending on the file

of the learned Additional Chief Metropolitan Magistrate, 29 th Court,

Bhoiwada, Dadar, Mumbai, have prayed for quashing of the said complaint

filed by Respondent No.1 and further proceedings thereof, in pursuance of

Order dated 6th August, 2004 passed by the Additional Chief Metropolitan

Magistrate.

2 Respondent No.1 is duly served and an Advocate has caused

appearance on his behalf. The present Application was called out for

hearing on 28th January, 2021, when none appeared for the Respondent

No.1 and therefore, it was adjourned for hearing to 8 th February, 2021. On

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8th February, 2021, also none appeared for the Respondent No.1. Today

also, none appears for Respondent No.1.

3 Heard Mr. Ingawale, learned counsel for the Applicant and

learned APP for the Respondent-State. Perused the record annexed to the

Application.

4 The record reveals that, the Respondent No.1 has filed the

aforestated Complaint against the Applicants and three other persons for

initiating criminal prosecution under Sections 406, 418, 409, 420 and 426

read with Section 34 of the Indian Penal Code and for directing the police

to register First Information Report according to Section 156(3) of the Cr.

P.C. and to investigate the said crime.

5 It is the precise case of the Respondent No.1/ Complainant

that, he entered into an Agreement dated 5 th January, 2002 with the

Applicants for supply of goods more specifically mentioned in the said

contract. In pursuance of the said contract, the Applicants were to

manufacture and then supply P/V (Dyed Yarn) finished fabric, with cut

border to the Complainant. That, the said fabric manufactured by the

Applicants was of substandard quality and not as per the agreed terms of

the contract. That, though the Complainant paid an advance of Rs.31 lacs,

he did not get the desired quality of goods. That, the Applicants sold the

said manufactured goods to the Original Accused Nos.3, 4 and 5, who runs

a business in the name and style of "Banbury Exports Private Limited". It is

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therefore contended that, the Applicants have committed the aforestated

offences and are liable to be punished accordingly.

Learned Magistrate by its Order dated 6 th August, 2004, was

pleased to forward the said Complaint to Economic Branch of Crime Branch

to investigate it under Section 156(3) of the Code of Criminal Procedure

and submit its report to the Court for taking further action/cognizance.

6 The record further indicates that, after the business relations

between the Applicants and Respondent No.1 got sour, particularly due to

alleged non-supply of proper quality of goods by the Applicants, the

Respondent No.1 initially lodged a Complaint on 25 th June, 2002, with the

Deputy Commissioner of Police, Mumbai. The Complainant also sent a

communication dated 29th August, 2002, to the Applicants intimating that,

he has lodged a Complaint with the Deputy Commissioner of Police,

Mumbai and called upon the Applicants to pay his dues within a period of

15 days.

It appears from record that, as the concerned police did not

take cognizance of the said Complaint, the Respondent No.1 again filed a

Complaint dated 12th October, 2002, with the Deputy Commissioner of

Police (EOW), Mumbai by increasing his alleged claim to Rs.41.80 lacs and

has requested the concerned Authority to take immediate action in the

matter to recover the said amount. The Complaint dated 12 th October, 2002

was taken note of by the concerned Authority and the Senior Inspector of

ssm 4 19- cri.Appln.4317.04.doc

Police, EOW Unit-I, Crime Branch, CID, Mumbai was directed to look into

the allegations of Respondent No.1. The Senior Inspector of Police, EOW

Unit-I, by his letter dated 29th March, 2004, intimated to the Respondent

No.1 that, a preliminary inquiry was conducted by the concerned

Department and it was found that, the dispute between the Respondent

No.1 and the Applicants is of Civil nature. It was also intimated to the

Respondent No.1 that, the inquiry was therefore closed.

7 In this background, the aforestated Complaint has been filed by

the Respondent No.1. It clearly appears from the record that, even the

police attached to the EOW, Unit-I, Crime Branch, CID, Mumbai found that,

the dispute inter-se between the Applicants and Respondent No.1 was of

Civil nature. Respondent No.1 has not mentioned the said fact of his filing

of various Complaints with the police prior to filing of the present

Complaint in question on 6th August, 2004 and has rather suppressed the

said facts. It further appears that, as the Respondent No.1 did not succeed

in recovering his alleged dues from the Applicants and/or other accused

persons, he has filed the present Complaint for the same. The present

Complaint filed by the Respondent No.1 is only for recovery of the said

amount under the guise of initiation of criminal prosecution against the

Applicants and none else.

8 Even otherwise, bare perusal of complaint clearly indicates

that, it is the case of a pure breach of contract and the Respondent No.1

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was having remedy in Civil Court.

It is the settled position of law that, mere breach of contract

cannot give rise for initiation of criminal prosecution for cheating. For

constituting an offence under Section 420 of the Indian Penal Code,

fraudulent and dishonest intention must be shown to be existing from the

very beginning of the transaction. Reliance is placed on the decision of the

Supreme Court in the case of Anil Mahajan Vs. Bhor Industries Ltd. & Anr.

reported in (2005) 10 SCC 228. The said vital ingredient is absent in the

present Complaint. It clearly appears that, there was no fraudulent

intention at the behest of the Applicants herein to commit the act of

cheating and/or to defraud Respondent No.1 for his monetary

consideration. As noted earlier, the Respondent No.1 in para No. 5 of his

Complaint has categorically admitted that, though the Applicants herein

manufactured the said fabric, it was not as per his requirement. If the

Applicants, since inception, would have been having the intention to

commit the act of cheating or criminal breach of trust, they would not have

at all manufactured the said fabric and in that eventuality, there would not

have been further question of Original Accused Nos. 3 to 5, purchasing the

same after its rejection by the Respondent No.1.

9 In view of the above, this Court is of the considered opinion

that, the Complaint filed by the Respondent No.1 was filed with malafide

intention, only to recover the alleged losses suffered by Respondent No.1

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arising out of breach of contract dated 5th January, 2002, and nothing else.

The Applicants therefore, succeed.

Application is accordingly allowed in terms of prayer clause (b). Digitally signed by Sanjiv S. Sanjiv S. Mashalkar Mashalkar Date: 2021.02.23 17:43:55 +0530

(A.S. GADKARI, J.)