High Court · 2024
Facts
1 Cri. Appln. 4185 / 2023IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPLICATION NO. 4185 OF 20231] Dushyant Singh Mangilal Panwar2] Dr. Samatha Singh.. Applicants Versus1] The State of Maharashtra, Through the Police Station Officer, Muktainagar Police Station, Dist. Jalgaon2] Pankaj Ramdas Punase.. Respondents...Advocate for applicants : Mr. N.P. Patil JamalpurkarAPP for the respondent – State : Mr. Sarang P. JoshiAdvocate for the respondent no. 2 : Mr. Yogesh H. Jadhav... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 19 APRIL 2024PRONOUNCED ON : 06 MAY 2024ORDER (MANGESH S. PATIL, J.) :Heard.2.This is an application under section 482 of the Code ofCriminal Procedure praying for quashment of the crime from FIRno. 344 of 2023 registered with Muktainagar Police Station, District –Jalgaon on 15-09-2023 for the offences punishable under section 177,201, 379, 406, 420 read with 34 of the Indian Penal Code and 2 Cri. Appln. 4185 / 2023consequent Regular Criminal Case no. 43 of 2024 pending before thelearned Judicial Magistrate, First Class, Muktainagar, District - Jalgaon.3.At the joint request of the parties, we have heard thematter finally at the stage of admission.4.The allegations as can be deduced from the chargesheetare to the effect that the respondent no. 2 intended to start R.O. andwater bottling plant in the name of his wife. He could trace anIndiamart portal that one Apex Technomac Company owned by thepresent applicants was dealer of various machines for the RO andbottling plant. He contacted them and they forwarded him a quotationon WhatsApp messenger. The deal was finalized in February 2023.Initially from his wife’s account, he transmitted an amount ofRs.51,000/- in the account of the applicants and, thereafter, again paidthem in aggregate Rs.4,50,000/- forming 25% of the total cost.5.It is then alleged that initially the applicants transmitted theplant and machinery and, thereafter, he again paid them differentamounts from time to time, in aggregate of Rs.20,51,000/-. Accordingto him, only Rs.20,000/- towards the transportation charges andRs.29,000/- were withheld by him since work of securing a licence wasnot complete. The applicants had assured him to install the plant andextended warranty for a year and assured of giving service for oneyear. 3 Cri. Appln. 4185 / 20236.It is then alleged that the entire plant and machinery wasnever supplied and installed and was not made ready for undertakingproduction in spite of his repeated requests. Finally, three individualswere sent by the applicants by name Shahid, Dinesh and Satish,however, all the three individuals did not complete the installation workto undertake any test. He then contacted the applicants and informedthem that in spite of repeated attempts, there was a problem of leakageand the persons sent by them were unable to rectify the error.7.It is then alleged that out of the three persons sent by theapplicant, Shahid developed acquaintance with couple of employeesengaged in the nearby petrol pump owned by respondent no. 2 andtaking advantage of it, stole cash of Rs. 15,000/- from employeeDeepak and all the three fled from the spot. After some pursuit, somepeople accosted them. They told these persons who had accostedthem that they were the employees of respondent no. 2. He was calledthere. On search, cash of Rs.10,000/- was found in Shahid’s bag.When he informed the episode to applicant no. 1, he assured to payhim the remaining amount of Rs.5000/- on the next day and evenassured to undertake the work of installation and, therefore, he did notlodge any compliant immediately. 4 Cri. Appln. 4185 / 20238.Lastly, it is alleged that the applicants have fraudulentlyand dishonestly made him to pay money by assuring installation of theR.O. and water bottling plant and have cheated him.9.The FIR also gives the particulars as to in what respectsthe plant was deficient.10.Learned advocate for the applicants would vehementlysubmit that accepting the allegations in the FIR at the face value, it isclearly a civil dispute and a commercial transaction. There is nothing toattribute any dishonest or fraudulent intention on the part of theapplicants. At the most, it is a matter of deficient service. It would beopen for respondent no. 2 to resort to the appropriate remedies toventilate his grievance, however, he has been able to manageregistration of the crime with an oblique motive as a short cut. It wouldbe abuse of the process of law to make the applicants face the trial. Itis not a matter of cheating or misappropriation. The applicants are notconcerned with the offence of alleged theft.11.He would advert our attention to the following decisions :i)Usha Chakraborty V. State of West Bengal and another; 2023 LiveLaw (SC) 67ii) Sachin Garg Vs. State of Uttar Pradesh and another; 2024 SCC OnLine SC 82iii) V.Y. Jose and another Vs. State of Gujarat; (2009) 3 SCC 78iv)M N G Bharateesh Reddy Vs. Ramesh Ranganathan and another; 2022 SCC OnLine SC 1061 5 Cri. Appln. 4185 / 2023v) Mitesh Kumar J. Sha Vs. The State of Karnataka and others;(2022) 14 SCC 57212.Per Contra, the learned APP and the learned advocate forrespondent no. 2 would at the outset submit that this being aproceeding invoking the powers of this Court under section 482 of theCode of Criminal Procedure, it is only to be examined as to if primafacie facts disclose ingredients of the offences being alleged. ThisCourt cannot resort to a mini trial. It cannot undertake minute scrutinyof the material from the chargesheet. It is the job of the trial Court. Thewhole purpose of exercising this power is to ensure that the individualsare not put to any avoidable harassment.13.In support of their submissions, they would rely upon thefollowing decisions :-i)MEDCHL Chemicals and Pharma (P) Ltd. Vs. Biological E. Ltd. and others; (2000) 3 SCC 269, ii) Rajesh Bajaj Vs. State NCT of Delhi and others; (1999) 3 SCC 259,iii) Prashant S/o Rajkumar Jhunjhunwala Vs. Union Territory of Daman and Diu at Daman and others; 2009 SCC OnLine Bom 75214.The learned APP and the learned advocate for respondentno. 2 would submit that the applicants had undertaken by way ofcontract, to supply, install and make operational R.O. and water bottlingplant. In spite of having received major portion of the consideration,they failed to do so and many persuasion did not yield any result and 6 Cri. Appln. 4185 / 2023the circumstances squarely make out a case of applicants having amens rea to dupe respondent no. 2 by resorting to cheating. Theywould submit that opportunity deserves to be extended to theprosecution to substantiate the allegations.15.Indeed, this being a proceeding under section 482 of theCode of Criminal Procedure, this Court has inherent limitations. It istrite that no threadbare scrutiny of the material collected by theprosecution can be undertaken. There cannot be a mini trial toascertain if the allegations have any merit. The whole purpose is tofind out from the facts and circumstances as to whether the ingredientsof the offence being alleged can be made out. This precisely has beenculled down in the matter of MEDCHL Chemicals and Pharma (P)Ltd. (supra). In the process, it has also referred to the observation inthe matter of Trisuns Chemical Industry V. Rajesh Agarwal; (1999)8 SCC 686.16.Paragraph no. 16 from MEDCHL Chemicals and Pharma(P) Ltd. (supra) reads as under :-“16. Be it noted that in the matter of exercise of the HighCourt's inherent power, the only requirement is to seewhether continuance of the proceeding would be a totalabuse of the process of court. The Criminal Procedure Codecontains a detailed procedure for investigation, charge andtrial, and in the event, the High Court is desirous of putting astop to the known procedure of law, the High Court must usea proper circumspection and as noticed above, very greatcare and caution to quash the complaint in exercise of itsinherent jurisdiction. Recently, this Court in Trisuns 7 Cri. Appln. 4185 / 2023Chemical Industry v. Rajesh Agarwal [(1999) 8 SCC 686]observed: (SCC pp. 689-90, paras 5-9)“5. The respondent's counsel in the High Court putforward mainly two contentions. The first was thatthe dispute is purely of a civil nature and hence noprosecution should have been permitted, and thesecond was that the Judicial Magistrate of the FirstClass, Gandhidham has no jurisdiction to entertainthe complaint. Learned Single Judge has approvedboth the contentions and quashed the complaintand the order passed by the Magistrate thereon.6. On the first count learned Single Judge pointedout that there was a specific clause in thememorandum of understanding arrived at betweenthe parties that disputes, if any, arising betweenthem in respect of any transaction can be resolvedthrough arbitration. The High Court made thefollowing observations:‘Besides supplies of processed soyabeanwere received by the complainantCompany without any objection and thesame have been exported by thecomplainant Company. The questionwhether the complainant Company didsuffer the loss as alleged by it are mattersto be adjudicated by the civil court andcannot be the subject-matter of criminalprosecution.’7. Time and again this Court has been pointing outthat quashing of FIR or a complaint in exercise ofthe inherent powers of the High Court should belimited to very extreme exceptions (vide State ofHaryana v. Bhajan Lal [1992 Supp (1) SCC 335]and Rajesh Bajaj v. State NCT of Delhi [(1999) 3SCC 259]).8. In the last referred case this Court also pointedout that merely because an act has a civil profile isnot sufficient to denude it of its criminal outfit. Wequote the following observations: (SCC p. 263,para 10) 8 Cri. Appln. 4185 / 2023‘10. It may be that the facts narrated inthe present complaint would as wellreveal a commercial transaction ormoney transaction. But that is hardly areason for holding that the offence ofcheating would elude from such atransaction. In fact, many a cheatingswere committed in the course ofcommercial and also moneytransactions.’9. We are unable to appreciate the reasoning thatthe provision incorporated in the agreement forreferring the disputes to arbitration is an effectivesubstitute for a criminal prosecution when thedisputed act is an offence. Arbitration is a remedyfor affording reliefs to the party affected by breachof the agreement but the arbitrator cannot conducta trial of any act which amounted to an offencealbeit the same act may be connected with thedischarge of any function under the agreement.Hence, those are not good reasons for the HighCourt to axe down the complaint at the thresholditself. The investigating agency should have had thefreedom to go into the whole gamut of theallegations and to reach a conclusion of its own.Pre-emption of such investigation would be justifiedonly in very extreme cases as indicated in State ofHaryana v. Bhajan Lal [1992 Supp (1) SCC 335] .”17.In Rajesh Bajaj (supra) it has been held that if theaverments in the complaint prima facie make out a case forinvestigation, the High Court cannot quash the complaint merelybecause an ingredient or two of the offence have not been detailed inthe complaint and even it would not be proper to quash the compliantsimply by observing that it is a commercial or money transaction. 9 Cri. Appln. 4185 / 2023There could possibly be an offence of cheating even in commercialtransaction.18.Bearing in mind these principles, if one examines thematter in hand, it is abundantly clear that as is being rightly submittedby the learned advocate for the applicants, their dispute withrespondent no.2 is clearly arising out of a commercial transactionhaving no iota of allegations or material to even prima faciedemonstrate any dishonest and fraudulent intention on their part muchless since inception.19.Even according to the prosecution, it is respondent no. 2who had contacted the applicants through a portal Indiamart as he wasintending to set up R.O. and water bottling plant. There weredeliberations. Even he himself had been to their place. Part ofconsideration was paid from time to time. The plant and machinerywas also installed. Precisely, even for securing the licence for runningsuch business, samples were drawn. Those were sent to theconcerned government department.20.As can be deduced from the FIR itself as also the papers,it is not that nothing was supplied in spite of applicants having receivedmajor part of the consideration. In fact, machinery was supplied. Itwas installed, even the applicants’ workers who are the co-accused,who are not before us, had been to the site at least on 3 to 4 occasions 10 Cri. Appln. 4185 / 2023albeit respondent no. 2 was perceiving that the plant was having somelimitations and was giving problem in running it. Some safety featureswere not there. R.O. plant was leaking etc.21.Though it is not clear as to when respondent no.2 for thefirst time contacted the applicants. According to the FIR, on14-02-2023, he made the initial payment of Rs.51,000/- and the FIRwas lodged on 21-08-2023. All the afore-mentioned facts andcircumstances would demonstrate that pursuant to the order placed byhim with the applicants, both the sides had made attempt to performtheir part of the contract and this period was of 6 months and it isthereafter that the dispute seems to have flared up and has culminatedin lodging of the FIR on 21-08-2023.22.We are demonstrating these circumstances to substantiateour inference that it is clearly a commercial transaction and a civildispute and is being tried to be given a cloak of an offence. The matteris squarely covered by the decisions of the Supreme Court cited bylearned advocate for the applicants Mr. Jamalpurkar in the matters ofI) Usha Chakraborty V. State of West Bengal and another, ii) SachinGarg Vs. State of Utter Pradesh and another, iii) V.Y. Jose and anotherVs. State of Gujarat, iv) M N G Bharateesh Reddy Vs. RameshRanganathan and another and v) Mitesh Kumar J. Sha Vs. The State ofKarnataka and others (supra).
Legal Reasoning
11 Cri. Appln. 4185 / 202323.In this regard, it is also important to note that even whenaccording to respondent no.2, the allegations of theft are attributable tothe employees of the applicants, and not the applicants themselves, hehas ensured that even those allegations about which he has notimmediately made any attempt to lodge compliant, the applicants areroped in along with the applicants.24.True it is that as has been laid down in the matter ofRajesh Bajaj (supra) even in a commercial transaction, there could bedishonest and fraudulent intention. However, there is dearth of anymaterial to make any observations in the present matter on that line. 25.In the matter of Prashant S/o Rajkumar Jhunjhunwala(supra) a division bench of this Court had an occasion to consider asimilar fact situation as is indicated in the matter of Rajesh Bajaj(supra), wherein, in spite of prima facie it being a commercialtransaction there were circumstances indicating that the accusedtherein was harbouring a dishonest and fraudulent intention sinceinception. The accused company had entered into an agreement withthe complainant for supply of paper, however, in spite of supply,payment was avoided. In fact, it had no such business and had neverpaid for purchasing paper worth crores of rupees which was thepretension made by the accused and labouring under such, thecomplainant had supplied paper and was victim of a case of cheating. 12 Cri. Appln. 4185 / 2023These peculiar circumstances are conspicuously absent in the matterin hand. There is nothing to demonstrate that the applicants are notengaged in any business much less dealing in sale of machinery andinstallation of R.O. and water bottling plant. There are neither theallegations nor the material. If this is so, we have no manner of doubtthat for the obvious purpose, attempt has been made to give colour ofcrime to a purely civil dispute.26.It would be sheer abuse of the process of law to make theapplicants face the prosecution. Their case is squarely covered by theparameters laid down in the matter of State of Haryana V/s BhajanLal; 1992 Supp (1) SCC 335.27.The Application is allowed.28.Crime no. 344 of 2023 registered with Muktainagar PoliceStation, District – Jalgaon for the offences punishable under section177, 201, 379, 406, 420 read with 34 of the Indian Penal Code andconsequent Regular Criminal Case no. 43 of 2024 pending before thelearned Judicial Magistrate, First Class, Muktainagar, District - Jalgaonare quashed and set aside. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/