* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 19th September, 2011
+ CRL.M.C.3749/2008
BHAGWANDAS AUTO FINANCE LTD.
& ORS. ..... Petitioners
Through: Mr.Yadunandan Bansal and Mr.Rauf
Rahim, Advocates
versus
STATE & ORS. ..... Respondents
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) for State/R-1
Mr.Madhukar Pandey, Advocate for
R-2
CRL.M.C.2751/2008
RAVI BHARTIA ..... Petitioner
Through: Mr.Amit Bansal and Mr.Diwaker
Maheshwari, Advocates
versus
STATE & ANR. ..... Respondents
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) for State/R-1
Mr.Madhukar Pandey, Advocate for
R-2
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
CRL.M.C.No.3749/2008 & 2751/2008 Page 1 of 7
PRADEEP NANDRAJOG, J.
1. Respondent No.2 in the above-captioned petitions i.e.
Vikas International (Hong Kong) Ltd. has filed Criminal
Complaint No.16736/2006 before the learned Metropolitan
Magistrate praying that the four accused listed therein be
punished for having committed offences punishable under
Section 420/120-B IPC.
2. Accused No.1 is Bhagwan Dass Auto Finance Ltd.
accused No.3 and 4 are Shri Ravinder Aggarwal and Shri Vishal
Aggarwal, the Managing Director and Director respectively of
accused No.1. Accused No.2 Shri Ravi Bhartia, is stated to be
the authorized signatory of accused No.1. The complaint reads
as under:-
“CRIMINAL COMPLAINT AGAINST THE ABOVE ACCUSED
PERSONS FOR THE OFFENCE PUNISHABLE U/S
420/120-B OF THE INDIAN PENAL CODE.
Sir,
It is respectfully submitted as under:-
1. That Vikas International (Hong Kong) Ltd. is a
subsidiary of Vikas Projects Pvt. Ltd., a Company
incorporated under The Companies Act, 1956 and
deals in the business of Export/Import and acting as a
commission Agent in the business of iron ores and
other allied products and enjoys high reputation in the
market and are known for their credibility.
2. That accused no.1 is the company, which deals in the
business of iron ore. Accused no.2 Sh.Ravi Bhartia is
the authorized signatory of accused no.1. Accused
no.3 Sh.Ravindan Aggarwal is the Managing director ofCRL.M.C.No.3749/2008 & 2751/2008 Page 2 of 7
accused no.1 and accused no.4 Sh.Vishal Aggarwal is
the executive director of accused no.1.
3. That all the accused persons entered into a criminal
conspiracy, object of which was to cheat the
complainant. In pursuance of above criminal
conspiracy, accused No.1 through accused no.2 to 4,
with the intention to cheat the complainant,
approached the complainant to find out a buyer in the
foreign country for the sale of iron ore fines. They
offered lucrative commission to the complainant.
Believing the above representation, assurance and
undertaking to be true, the complainant and their
group made various efforts and spent huge amount
and man power to find out a buyer namely Fremery
Resources Ltd., which was interested in buying iron
ore fines from India. Various negotiations had taken
place between the accused persons and the buyer and
ultimately a deal was struck and a contract was
executed between accused no.1 through accused no.2
and the buyer. It was agreed that the complainant is
entitled to have a commission @ US$1 per MT of the
shipped quantity from the seller i.e. accused no.1 for
the services rendered by them in identifying the buyer
and for the execution of the contract.
4. That the accused no.1 successfully exported and sold
the goods to the buyer and received a substantial
payment for the same. At the instance of accused
no.2, the complainant raised an invoice of US$ 17695/-
against the accused no.1 for the agreed commission.
5. That in order to avoid the agreed payment of the
commission to the complainant, all the accused
persons started raising flimsy disputes and malafidely
started denying the role of the complainant. All the
accused persons were very much aware that the
complainant is entitled for the commission of US$
17695 for the services rendered by them.
CRL.M.C.No.3749/2008 & 2751/2008 Page 3 of 7
6. That all the accused persons, in pursuance of their
conspiracy, induced the complainant to invest money
and man power to identify the buyer and also to get a
deal for which both accused have no intention to pay
and therefore they have committed an offence
punishable U/s 420/120-B of I.P.C.
PRAYER
In the above circumstances, it is therefore
prayed that all the above accused persons may please
be summoned, tried and punished for the offence
committed U/s 420/120-B of I.P.C.”
3. From a perusal of the complaint which consists of 6
paragraphs, it is to be found that in para 1 the complainant has
stated its juristic entity and the business it is engaged in i.e.
acting as a Commission Agent pertaining to, amongst other
products, iron ore. In para No.2 of the complaint the juristic
entity of the accused has been disclosed and in para 3 the
contract between the parties, on basis whereof the complaint,
has been filed have been stated.
4. In the first sentence of para 3 it is stated that the
accused entered into a criminal conspiracy to cheat the
complainant. In the second sentence it is stated that pursuant
to the conspiracy accused No.1 approached complainant
through accused No.2 to 4 to find a foreign buyer and in the
third sentence it is stated that accused No.2 to 4 offered
lucrative commission.
5. What was the lucrative commission and what were the
terms on which commission would be paid have not been
stated. Was the commission to be paid when a deal was struck
CRL.M.C.No.3749/2008 & 2751/2008 Page 4 of 7
with a foreign buyer or was it to be paid after the contract was
completed with the foreign buyer? Nothing has been stated.
6. In the fourth sentence of para 3 it is pleaded that
believing the assurances to be true the complainant made
efforts and spent huge amount and manpower to find a buyer,
namely, Fremery Resources Ltd.
7. What amount was spent and in what manner to find
the foreign buyer? No particulars have been stated.
8. In the fifth sentence of the paragraph it is pleaded that
various negotiations have taken place between the accused
and the buyer and a deal was struck and the contract was
executed between the buyer and accused No.1.
9. What was the contract struck? No pleadings qua the
same. In what manner the complainant was instrumental in
settling the contract, other than finding a foreign buyer? No
pleading qua the same.
10. In the sixth sentence of the paragraph it is pleaded
that it was agreed that the complainant would be entitled to
commission @ US$1 per MT of the shipped goods to the buyer
identified.
11. There are no averments as to what quantity of iron ore
was shipped. The averment in the first sentence of paragraph
4 that accused No.1 successfully exported the good and
received substantial payment are bereft of even a simple
statement pertaining to the quantify shipped and the price
received.
CRL.M.C.No.3749/2008 & 2751/2008 Page 5 of 7
12. In paragraph 5 it is pleaded that the accused started
raising flimsy disputes and malafidely denied the role of the
complainant. What are the particulars of the flimsy disputes?
None have been stated.
13. It is apparent that the complaint is as vague as
vagueness can be and ex-facie is a crude attempt to ensnare
the accused in the clutches of criminal law to extract money.
14. Since it is settled law that documents annexed with the
complaint can be considered, I would simply highlight that the
documents would evidence that accused No.1 is in serious
litigation with the foreign buyer Fremery Resources Ltd. and
has not received the payment due to accused No.1 for the
goods which were exported.
15. Now, in the absence of any pleadings in the complaint
that the commission was payable when the contract was
executed with the foreign buyer identified by the complainant,
can it be said that the accused has breached the contract, or
that it induced the complainant to find a foreign buyer with the
intention to cheat the complainant? The answer would be „No‟.
16. It is apparent that the dispute between the parties is of
a civil nature.
17. The plea of learned counsel for the complainant that
the malice of the accused is apparent from the fact that they
have directed the complainant to raise a bill directly on
Fremery Resources Ltd. and thus the complaint must be
allowed to proceed ignores the fact that the foreign buyer
identified by the complainant with whom the accused entered
into a contract is not paying the money to the accused No.1 for
CRL.M.C.No.3749/2008 & 2751/2008 Page 6 of 7
the good received and since the complainant was the one who
found the foreign buyer, within the confines of business ethics,
I find, prima-facie of course, nothing wrong in the accused
telling the complainant to received whatever commission he
desires from the party he identified as a prospective buyer for
the accused.
18. In the decision reported as (2007) 12 SCC 1 Inder
Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., the
Supreme Court held that a High Court having inherent power
under Section 482 Cr.PC, though obliged to exercise the same
sparingly, carefully and with great caution, would be fully
justified in exercising the power to (i) give effect to an order
under the Code, (ii) prevent abuse of the process of Court; and
(iii) to otherwise secure the ends of justice – to be exercised ex
debito justitiae to do real and substantial justice for the
administration of which alone the courts exist and it is the duty
of the court to ensure that criminal prosecution is not used as
an instrument of harassment or for seeking private vendetta or
with an ulterior motive to pressurize the accused.
19. The captioned petitions filed by the accused are
allowed. The complaint filed by respondent No.2 is quashed.
The order summoning the accused is also quashed.
(PRADEEP NANDRAJOG)
JUDGE
SEPTEMBER 19, 2011
rk
CRL.M.C.No.3749/2008 & 2751/2008 Page 7 of 7