SHYAM SUNDER BANKA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This is an application under section 462 of the Code of Criminal Procedure for quashing the order dated 15-8- 78 of the trial Magistrate taking cognizable under sections 406 and 420 read with section 34, I.P.C. against the applicants on a complaint being filed by the non-applicants 2-4.

(2.) The non-applicants 2 and 3 are partners of the firm Nandkishore Mohanlal which is doing business in grains in Azad Chouk, Raipur. The firm sells grains at different places of India through Commission Agents. The applicants 1-3 are partners of the firm Banka Trading Company and doing business in grains on commission in Mansoorgunj, Patna. On 16-2-78 non applicant No. 2negotiated on telephone with the applicants for selling their grains in their Adat. It was stipulated that the complainants would despatch grains by rail and the railway receipt would be sent through the Bank which can be obtained by the applicants on honouring the Hundi drawn for an amount equal to 3/4th price of the grains. After taking delivery, the grains to be sold by the applicants and the balance remitted to the complainants after deducting the 3/4th of the price, the commission of the applicants and, other expenses. On 28-2-1978 the applicants informed the complainants that the prevailing rate of Khesari Dal was Rs. 220/-per quintal at Patna. Accordingly, the complainants despatched 227 quintals of Khesari Dal by rail on 1-3-1978 under 3 railway receipts for lots of 80, 67 and 80 bags. There is no dispute about the first consignment of 80 bags. The dispute is regarding 147 bags valued at Rs. 32,340/- The Hundi was drawn for Rs. 22,000/- but the applicants did not rake delivery and instead informed the complainants to send an indemnity bond so that they could take delivery without producing the railway receipt by honouring the Hundi. This was to dupe the complainants but they did not agree. When the complainants partner, went to Patna on 13-3-1978 he was told that the applicants were short of Rs. 3,000/- for honouring the Hundi so the amount was paid by the partner. The Hundi was not honoured and they again demanded Rs.5,000/- more for honouring the Hundi. which was sent by telegraphic transfer. Then the applicants honoured the Hundi of Rs. 22,000/-and took delivery of 147 bags but still today they have not furnished any account nor even remitted the balance amount of Rs. 18,340/- The complainants again sent 240 bags of Khesari Dal at the same rate to the applicants valued at Rs. 52,000/- and the applicants by honouring the Hundi of Rs. 36,000/- have taken delivery but they have not furnished any account, nor remitted the balance amount of Rs. 16,800/- so there is a criminal breach of trust and the complainants have been cheated for the amount of Rs. 34, 140/-. After recording statement of the partner, Nand Kishore the trial Magistrate registered a complaint under sections 406 and 420 read with section 34, Indian Penal Code and issued process to the applicants. It appears that the process has been served on these applicants but on learning about the complaint they approached this Court for quashing the proceedings by saying that it is a civil dispute and the prosecution of the applicants amounts to abuse of the process of the Court.

(3.) After having heard the parties, I am of the opinion that this application has to be allowed and the criminal proceedings against the applicants launched by the complainants has to be quashed. The Supreme Court in Trilok Singh v. Satya Deol has held that to prevent abuse of the process of any Court Section 482 invoked purchase of truck under hire-purchase agreement-Default clause Seizure of truck, on default by financier Purchaser launching criminal prosecution against financier-Dispute raised was purely of civil nature and criminal proceeding initiated was an abuse of the process of the Court and deserved to be quashed. In the present case it appears that there have been several transactions between the complainants and the applicants. The applicants have been taking delivery of the consignment of grains sent by the complainants by honouring the Hundi towards the 3/4th price of the consignment. There is no dispute so far as the consignment of 80 bags sent on 1-3-1978 is concerned. The dispute is relating to remaining 147 bags and further consignment of 240 bags sent afterwards. Consignment of 147 bags was taken delivery by the applicants after honouring the Hundi of Rs. 22,000/though the complainant alleged that out of this amount Rs. 8,000/- were advanced by them as the applicants were short of money and the next consignment of 240 bags were taken delivery by applicant by honouring the Hundi of Rs. 36,000/-. Though it is mentioned in the complaint that the consignment was despatched after the applicants informed that the prevailing price was Rs. 220/- per quintal for Khesari Dal but it has not been stated at what price these two consignments were sold by the applicants. On the other hand, the applicants contend that there was no agreement to send these two consignments to be sold at the rate of Rs. 220/- per bag. In fact the complainants have thrust these two consignments on the applicants to be sold in their Adhat and they have furnished account and in fact they have to recover Rs. 2,561.89 from the complainants and in order to defeat their complaint this false complaint has been filed. The applicant did not demand or receive from the complainant Rs. 8,000/- for honouring the Hundi. The Supreme Court in Superintendent & R. Legal Affairs v. Birendra Chandra,2 has held that where there was long and intimate relation between the accused and the complainant and there were numerous transactions between them it would be difficult to determine the extent to which the complainant was duped or persuaded by mis-representation to part with her rights in certain properties alleged to be the subject-matter of breach of trust. It was a dispute of an essentially civil nature which had to be decided between the parties before any question of criminal liability could be adjudicated upon. Again Supreme Court in Mohammad Sulaiman v. Mohd. Ayub3 has held that the real dispute between the parties, therefore as to the nature of the agreement between them when the car was entrusted to the appellant. The appellant saying it to be an out-right sale while the complain at contended that it was given on hire. That dispute was clearly of a civil nature. Further the Supreme Court in Han Prasad Chamaria v. Bishun Kumar4 has held that Even assuming prima facie an the allegations in the complaint to be true they merely amount to a breach of contract and could not give rise to criminal prosecution. There was nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with the money nor did the complaint indicate that the respondents had induced the appellant to pay them the amount parted with. The appellant also did not allege the respondent making any representation to him for parting with the money. Mere fact that they did not abide by their commitment as to starting of the business in complainants liability. Therefore, in view of these decisions the dispute between the complainants and the applicants are of a civil nature and the remedy of the complainants is to file a civil suit to recover dues, if any. The prosecution of the applicants amounts to abuse of the process of the Court.