MOHAN BHATIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal misc. petition under Section 482 Cr.P.C. has been filed by the Chairman and Managing Director of M/s Bhatia Shipping & Agencies Pvt. Limited, Mumbai for quashing of FIR No. 269/2003 under Sections 407 420 424 and 120B IPC, registered at Police Station Basni, District Jodhpur in pursuance to the directions issued by the Judicial Magistrate, First Class No. 4, Jodhpur under Section 156(3) Cr.P.C. on the compliant of one Ghevar Chand Kanoongo, Managing Director of firm Alcobex Metals Pvt. Ltd. situated at industrial area, Jodhpur, against M/s Bhatia Shipping & Agencies Pvt. Ltd. Mumbai along with their three Directors and Sai Shipping Company Pvt. Ltd., Mumbai with their three Directors. In all, two companies and its six Directors were made accused in the complaint. The allegation in the compliant was that complainant firm is producing and dealing in non ferrous metals at its Jodhpur factory. It is alleged in the complaint that on 12.4.01, M/s. Salem Tube International Ltd., England placed order for the purchase of copper alloy tubes (aluminium bronze) with a condition that delivery of the goods shall be made on payment i.e. cash against the documents. The petitioners M/s Bhatia Shipping & Agencies Pvt. Ltd. sent the goods through M/s. Sai Shipping and Agency Pvt. Ltd., as both the companies are doing carrier business. It is further alleged in the complaint that the complainant firm sent 25,800 kilogram copper alloy tubes contained in eight wooden boxes to Bombay through truck at its agent M/s Bhatia Shipping & Agencies Pvt. Ltd. and for its onward transmission to M/s Salem Tube, England through Sai Shipping Agencies vide Invoice No. AMI/EXP/2001 -02/154 dated 19.1.02, costing G.R. Pounds 96,620 (equivalent to Rs. 78 lacs approximately Indian currency). The said goods were sent from Bombay port to Avonmouth (England) and thereafter at West Midland and Stayford through roads by sending bill of lading to its Bank. In the complaint, it is also alleged that one of the condition was cash against document basis i.e. on presentation of the bill of lading to its shipping agent, the goods will be delivered to the buyer. When complainant enquired from National West Minister Bank, Gray Street, England through his Bank of India at Jodhpur, he came to know that purchaser has not made the payment. After considerable lapse of time, when he made an enquiry, he came to know that the directors of accused Carrier Companies with dishonest intention and to put loss to the complainant made delivery without original bill of lading, whereby, till the date of filing of the complaint, he has been put to a total loss of Rs. 1 crore 34 lacs and thereby they committed offence under Sections 407 420 424 & 120B IPC.

(2.) UPON this compliant, police registered a case and commenced investigation. Though, the police has not submitted its result of investigation to the concerned court but it is revealed from the investigation file produced for the perusal of the court by learned Public Prosecutor that in this case, the Addl. Superintendent of Police has also recommended final report being case of the civil nature and approved by the Inspector General of Police but for one or the other reason, the result has not been submitted to the concerned court despite there being clear opinion of the Assistant Public Prosecutor of case being of civil nature.

(3.) PER contra, Mr. M.D. Purohit, learned Senior Advocate and Mr. J.S. Choudhary, learned Counsel, appearing on behalf of the complainant/respondent have submitted that it is a fit case for criminal breach of trust and misappropriation of property, because the goods were required to be delivered to the English Company on payment as per the condition stipulated in the agreement. On non payment of the 100% amount which was the condition precedent for delivery on cash against documents complainant has been put to a loss of Rs. 78 lacs, which now comes to Rs. 1 crore and 34 lacs and thereby the petitioners have cheated the complainant firm. In support of their contentions, learned Counsel for the complainant have also placed reliance on some of the judgments, which will be referred later on.