NEERAJ RAJ GARG Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition has been preferred under S. 482 Cr.P.C. for quashing the order, dated 8.3.89 of the learned Judicial Magistrate, Ramganjmandi whereby he rejected the application filed by accused-petitioner under Ss. 177 and 181(4) Cr.P.C. The petitioner has also made a prayer for quashing the order, dated 22.12.88 wherein the learned Judicial Magistrate has taken cognizance for offence under S. 499 IPC and summoned the accused-petitioner through bailable warrant in the amount of Rs. 2000/-.

(2.) BRIEFLY stating the facts of the case are that non-petitioner No. 2 Mangalam Cement Limited, Modak District Kota which has its registered office in Kota, filed a complaint in the court of Judicial Magistrate, Ramganjmandi District Kota wherein it was alleged that the complainant is producing the cement and is selling the same through various outlets and one of its dump is in Ghaziabad. They appointed the accused-petitioner Neeraj Raj Garg on .1.5.1987 as their handling agent and an agreement was signed in respect of the same. One of the conditions of appointment of the accused-petitioner was that he will receive the amount of sale of cement from various stockists through bank drafts or cheques and after calculating the same he will remit the amount to the complainant. A specific-instruction was alleged to have been given to the accused-petitioner that he will not receive the money in cash from any of the party. According to the complainant in their accounts Rs. 5,12,426/- were outstanding against M/s Shiva Cement Corporation. The complainant asked the accused for recovery of this amount from M/s Shiva Cement Corporation on which the accused-petitioner on 15.10.87 told the complainant that he has not received any payment from the party so far. Therefore, the complainant sent its representative to the party, i.e. M/s Shiva Cement Corporation who informed the representative of the complainant that the amount has been paid to their handling agent Neeraj Raj Garg in cash who has passed over the receipts also to them. M/s Shiva Cement also informed the complainant that the accused gave them to understand that company has directed to recover the money in cash and therefore, on his saying so the money was paid to him. M/s Shiva Cement Corporation showed the account and stated that they have paid Rs. 3,75,000/- in cash to the accused-petitioner regarding which he also produced the receipts, numbers of which have been given in para 6 of the complaint. This amount was paid to the handling agent, the accused-petitioner, for being remitted to Modak. The accused was summoned at Delhi office of the company on 27.10.87 and was asked about his receiving the money in cash. He initially refused having received any amount but later on when was confronted with the representative of Shiv Cement Corporation admitted the receipt of money and stated that the money has been spent for his personal business and he has no money. On the aforesaid allegations that the accused having received Rs. 3,75;000/- on behalf of the company failed to remit the amount and converted the same to his use, a complaint for offences under Ss. 408 and 420 IPC was instituted. This complaint was forwarded by the learned Magistrate to the police under Ss. 156(3) Cr.P.C. for investigation on 16.11.87 and the S.H.O. police station, Modak registered a case for offence under Ss. 408 and 420 I.P.C. on 22.11.87.

(3.) ON a careful reading of the case law cited it can safely be inferred that in both the eventualities, i,e., when there is either lack of territorial jurisdiction or when the matter is entirely of civil nature, the court should interfere at the earliest stage so that the parties are not unnecessarily dragged into the litigation. It is now well settled that when there is total lack of jurisdiction the court should not proceed and inform the party to go to proper court if he so chooses, but this must be borne out from entire material placed by the complainant, i.e., the complaint or the F.I.R. as the case may be, and papers submitted under S. 173 Cr.P.C. If it is also made out that the case is purely of civil nature the criminal court should quash the proceedings, But at the same time it is also settled law that at that stage only the prosecution documents can be taken note of and the court will decide only on the basis of the material produced before it by the prosecution and that too on bare perusal of the material on record, Inference can be drawn without going into other aspects of the matter. In P.J. Munshi Vs. State (20) while deciding a case under Sec. 197 Cr.P.C. this court held that matter should be decided at the earliest but at the same time material should be properly taken on record, Legislature has while enacting new Code of Criminal Procedure enacted S. 294 Cr.P.C. which gives right to the party to place the documents on which they intend to rely on record along with list and parties can be asked to admit or deny and if that is done no formal proof in respect of the document is required. This court also held in case quoted above that parties can submit affidavit in support of their contentions when preliminary questions are raised and are to be decided. In the instant cage regarding the territorial jurisdiction it is a mixed question of law and fact on which either party has first to place whatever material is in their possession on record and similarly on the second issue the agreement shows that handling agent was not entitled to receive the amount in cash and according to statements of officers of M/s Shiva Cement Corporation the accused Misrepresented to them and obtained the money in cash to the contrary the question of mens ria will have to be decided. It may be that since both the questions are such which go at the route of the entire matter, they should be decided at the earliest but before doing that parties may be a directed to place respective material on record and file affidavit if they intend to do so in support of then-respective cases for the limited purpose and that is precisely what the trial court has stated in its order, dated 8.3.89. I do not find any infirmity at this stage in the order so as to interfere under S. 482 Cr.P.C. It is open to the petitioner to move a fresh application along with affidavits and proper material and the trial court shall decide afresh the questions in case the material is placed.