OM PRAKASH SINGHANIA Vs. NAURATAN SINGH DUDHARIA

JUDGEMENT

(1.) The application under section 482, Criminal Procedure Code (for short, 'the Code') is by two of the accused. The prayer ia to quash the criminal proceedings under sections 420 and 406 of the Indian Penal Code arising out of the Complaint Case No. 230 of 1975 which is pending in the court of Subdivisional Judicial Magistrate, Bhagalpur. The complaint was made on 13th January, 1975. A further prayer was made that the order dated 3th August, 1978 by which the petitioners were summoned to face the trial be also quashed as being illegal and without jurisdiction. The petitioners are the partners of a firm known as M/s. Singhania Trading Co., Asansole (briefly, the Asansole firm) and are dealers in foodgrains. The complainant Nawratan Mal Dudharia is the proprietor of M/s. Sumer Mal Bahadur Singh of Shermari Bazar at Pirpainti (for short, the Pirpainti firm), He also is a dealer in foodgrains.

(2.) The case of the complainant, In brief, is that 95 bags of gram weighing 95 quintals belonging to the complainant, namely, the Pirpainti firm were taken by the Asansole firm through its Munim Mangi Ram on 28 November, 1974 on a truck bearing No. B. R. J. 2714 for disposal at the rate of Rs. 260/- per quintal (the total sum, thus, being Rs. 25,700/-) out of which Rs. 1,000/-was to be deducted as Arhat charges and truck hiring charges and that a bank draft for the balance amount of Rs. 23,700/- was to be sent to the complainant but the money was not sent and it was not paid. On 14th December, 1974 the complainant sent a telegram to the Asansole firm directing it not to sell at a price less than Rs. 260/- per quintal, whereupon the Asansole firm informed it on 19th December, 1974 that the goods had already been sold at Rs. 152/- per quintal. On receipt of that telegram the complainant sent another telegram telling them that they had wrongly sold the goods at that price. The complainant was examined on solemn affirmation and further four witnesses were also examined by the Magistrate. Those witnesses supported the fact that 95 bags of gram had been taken by the Asansole firm through their Munim Mangi Ram on 17th January, 1975. Cognizance for offences under sections 420 and 406 Indian Penal Code was taken against Mangi Ram only. On 4th June, 1977 the complainant filed an application to summon the two petitioners also to face the trial. The prayer to summon them was rejected on 19th July, 1977. Charges were framed for the offences of cheating and criminal breach of trust on 20th September, 1977. Two witnesses were examined before charge and one was examined after the charge. According to the last witness Babulal also was present along with Mangi Ram at the Pirpainti firm during the discussion about the taking of gram from Pirpainti firm to Asansole firm. A fresh petition was filed by the complainant on 3-8-1978 to summon the petitioners and this time it was allowed by the Magistrate by his order dated 26th August, 1978. At this place I may mention one more fact, namely, that the complainant has also filed a Money Suit No. 116 of 1977 hefore the Subordinate Judge, Bhagalpur against the Asansole firm and their Munim Mangi Ram for realisation of a sum of Rs. 33,000/- and odd, the same being the price of 95 bags of gram with interest and cost.

(3.) From the alleged aforesaid facts it is clear that the case is essentially one of civil nature and not of a criminal nature. The parties entered into an agreement with their free volition to the effect that the goods were sold at Rs. 260/- per quintal through the Asansole firm as Arhatia ; the Asansole firm was to act practically as an agent. In the petition of complaint there is absolutely nothing to show that the Munim Mangi Ram, farless the petitioners, had any intention to cheat the Pirpainti firm from the outset. The allegations made in the complaint that on 29th November, 1974 after the arrival of the goods at Asansol, the Asansol firm showed inability to send the Bank draft due to the closure of the Bank was a subsequent event, the goods having been sent on 28th November, 1974. In the complaint itself it is alleged that the Asansole firm made a further request to the Pirpainti (sic) for sending more gram on two trucks at the rate varying from Rs. 221 to 229/- and this shows that the Asansole firm wanted to enter into further business agreement with the Pirpainti firm. To me it appears that it was only a case of non-payment of money at the higher rate demanded by the complainant. It is case of mere breach of contract for which "the complainant had a civil remedy by way of civil suit and in fact, a money suit has been brought by the complainant as above-mentioned. It is not a case in which the complainant should have taken recourse to further criminal proceedings. In my opinion the criminal proceeding is merely a camouflage of a civil dispute. It has been pointed out by their Lordships of the Supreme Court in Mahadeo Prasad v. State of West Bengal, (AIR 1954 SC 724) : (1954 Cri LJ 1806) that if the accused had, at the time he promised to pay each against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. In Mubark Ali Ahmad v. State of Bombay (MR 1957 SC 857) : (1957 Cr. LJ 1346) it was reiterated by their Lordships of the Supreme Court that the question whether the evidence discloses only a breach of civil liability or a criminal offence of cheating depends upon whether the complainant in parting with the money acted on the representation of the accused and in belief of the truth thereof and whether those representations, when made were in fact false to the knowledge of the accused and whether he had dishonest intention from the outset. In Hari Prasad Chamaria v. Bishnu Kumar Surekha (AIR 1974 SC 301) ; (1974 Cri. LJ 352) the complainant intended to start business, and gave in full faith a large amount to the respondents for the same. The respondents started business in their own name and refused to render accounts or return money. The complainant prosecuted the accused, under section 420 J. P. C. The accused prayed for quashing on proceeding under section 561-A Cr. P. 0. which were quashed by the High Court. The complainant went up in appeal to the Supreme Court. Their Lordships observed that (at pages 353 - 354 of 1974 Cri LJ).