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REPORTED
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO.1692 OF 2006.
Brajo Sunder S/o Krishnapad
Banerjee, Age 64 years,
Occ.Business, R/o 23/50,
Gandharv Colony, Dhule Road,
Jalgaon, Dist. Jalgaon. ... Applicant.
Versus
1. The State of Maharashtra
2. Dr.Champalal Phulchand
Desarda, Age 65 years, Occ.
Business, R/o 28, Parason
House/Venkatesh Nagar,
Aurangabad. ... Respondents.
...
Mr.K.C.Sant, advocate for the applicant.
Mr.N.H.Borade, A.P.P. for Respondent No.1.
Mr.D.V.Soman, advocate for Respondent No.2.
...
CORAM : V.R.KINGAONKAR,J.
Reserved on :27.08.2008.
Pronounced on:09.09.2008.
JUDGMENT
1. This is an application filed U/s 482 of
the Cr.P.C. for quashing proceedings of Criminal
case arising out of Crime No.I-33/2005, registered at
Bidkin Police Station for offences U/s 406, and 420
of the I.P.C.
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2. Admittedly, there took place agreements
between Dr.Champalal Desarda and applicant Brajo
Sunder. The former owns a horticultural garden in
field Gat No.79 at village Bidkin, styled as “Madhur
Keshar Faludhyan Kendra”, whereas the latter runs a
proprietary business styled as “M/s India Seeds and
Horticultural Firm, Howrah (Calcutta)”. By mutual
agreements it was agreed that the applicant would
supply saplings of Sandal wood plants. It was agreed
that the applicant would supply saplings of high
quality
mango plants of ‘Amrapali’ variety, and that
of Mohogani plants. The parties entered into three
separate agreements. There is no dispute about the
fact that as per terms of the agreement, the
applicant was supposed to develop the orchard and
garden. He agreed to supervise the cultivation of
the plants and provide for consultation to take care
of the plants. He represented that the Amrapali
variety of mango plants would give yield after couple
of years to the extent of part and after five (5)
years of at least 500 Kg. per tree. He also
represented that the Mohogani plants would be fully
grown after 25/30 years. It was agreed that as and
when the applicant or his representative would visit
the orchard/garden, he or his representative would
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enter the observations and details of visit in the
visit book which was to be maintained by the farm
owner i.e. Dr.Champalal Desarda. It was agreed
further that in case the plant will not bear fruits
then the applicant would replace the same at his own
costs and would cultivate it. He would not, however,
be liable to pay any compensation. The terms of the
agreement dated 6.6.2001, 3l.5.2001 and 4.6.2001 were
reduced into writing as per mutual understanding of
the parties.
3. There
ig is controversy as regards who
committed breach of the terms of the agreements. The
applicant alleged that Dr.Champalal Desarda did not
perform his part of the agreement. He filed criminal
proceedings against Dr.Champalal Desarda in the Court
at Howrah. Thereafter, employee of Dr.Champalal
Desarda lodged F.I.R. on 27.3.2005 against the
applicant at Bidkin Police Station. The F.I.R.
lodged by complainant Vivek, who claims to be liaison
Officer of Dr.Champalal Desarda, purports to show
that the applicant met his Master in September 2001
and represented that he deals in best quality
saplings. He canvassed utility of best quality
saplings and also showed a video film demonstration
to explain how wood plantation would give better
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yield and benefit. He assured that the horticultural
farm owner would get plenty of income and there will
be no loss. It was further alleged that Dr.Champalal
Desarda purchased saplings of sandal wood plants,
Amrapali variety mango plants and saplings of
Mohogani wood plants. It was averred in the F.I.R.
that the applicant visited horticultural farm from
time to time and collected amount of Rs.2,00,000/-
(Rupees two lacs) from the owner - Dr.Champalal
Desarda. Allegedly, the applicant subsequently did
not keep the promise and stopped visits to the
horticultural
farm. The saplings provided by him
were found to be of inferior quality. The yield of
mango plants was also not as per the assurance given
by him. Consequently, it was alleged that the
applicant committed offence of criminal breach of
trust and cheating.
4. The applicant was arrested in connection
with Crime No.I-33/2005, registered on the basis of
the above F.I.R. lodged by said Vivek. He was
produced before the learned Judicial Magistrate,
Paithan. The learned Judicial Magistrate granted
Police custody remand as per request of the
Investigating Officer. The Police custody remand was
extended further till 28.3.2006. The Investigating
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Officer, however, submitted a report dated 24.3.2006
to the effect that the Police custody remand was no
more needed thereafter. The applicant was then
remanded to Magisterial custody till 5.4.2006. The
Police submitted a report dated 28.6.2006 (Exh.E-1)
U/s 169 of the Cr.P.C.. The Police report shows that
during investigation it was found that the matter
relates to Civil dispute between the parties. The
Police came to the conclusion that no offence, of
Criminal breach of trust or cheating, was revealed
from the investigation papers, and hence, the
applicant was sought to be discharged. An intimation
of such final report U/s 169 of the Cr.P.C. was
given to the complainant. It appears that the
complainant filed Protest Petition which is at Exh.1
(RCC No.261/06).
5. The learned Judicial Magistrate considered
“C” summary report filed by the Police and passed a
brief order as follows :
” After evaluating the evidence
collected by the Investigating Agency, as
there are sufficient ground to proceed
against the accused person. Hence, I
disagree with the report.”
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It appears that thereafter the Criminal proceedings
were instituted against the applicant.
6. The applicant impugns the order rendered by
the learned Judicial Magistrate and the Criminal
proceedings instituted pursuant to the same. The
applicant alleges that the F.I.R. lodged by so-called
liaison Officer – Vivek is malafide and was given just
to counter the Criminal proceedings initiated by him
in the Court of Chief Judicial Magistrate at Howrah.
He asserts that the entire allegation in the complaint
would not make out any case within the ambit of
Section 415 of the I.P.C. He asserts that the
allegation in the complaint to the effect that 50% of
the plants were of inferior quality are quite vague
and moreover, there could be no Criminal intention at
the inception when at least 50% of them admittedly are
of best quality. He asserts that the learned Judicial
Magistrate recorded disagreement with the Police
report without assigning any tangible reason and
arbitrarily proceeded to take cognizance of the
offence without there being substratum to infer his
complicity. He urged, therefore, to quash the
Criminal proceedings.
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7. The Respondent No.2 – Dr.Champalal Desarda
resisted the application. He has filed
affidavit-in-reply. He alleges that the applicant
does not possess licence to deal in the business of
seedlings. He asserts that the applicant played fraud
on a large number of agriculturists/horticulturists.
He asserts that the modus operandi of the applicant
was that he use to allure the customers to purchase
plants as per terms of the agreement. He use to
collect huge amounts from the customers and thereafter
use to gradually withdraw himself from the activity of
development of
the horticulture garden or orchard.
The applicant use to shift his head office and branch
offices. He use to supply cheap and inferior
saplings. He grabbed huge amount with ill-intention
to dupe and hence, the impugned order of the learned
Magistrate is quite sustainable. Consequently, he
urged to dismiss the application.
8. Mr.Sant, would submit that the entire
dispute pertains to Civil liabilities arising out of
the contracts. He would submit that in respect of
payments made under the terms of agreements, there
could no Criminal breach of trust because such amounts
were not entrusted with a view to get back the same or
for any specific purpose other than due performance of
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the terms of the agreements. He would submit that for
the purpose of Section 415 of the I.P.C. it ought to
be shown that at the inception there was dishonest
intention present in the mind of the applicant. He
would submit that after five (5) years period there
may be shortcoming in respect of yield which is not as
per expectation of Respondent No.2 but it does not per
se imply any ingredients of offence of cheating. He
would further submit that the learned Judicial
Magistrate could not have just shown his disagreement
with the report of the Investigating Officer without
giving reasons.
ig He argued that the impugned order and
the Criminal proceedings initiated pursuant thereto
would amount to abuse of the process of the Court.
Per contra, Mr.Soman, would submit that the applicant
is involved in similar kind of crimes registered
against him at instance of large number of customers
and it has become his habit to commit the fraud. He
would submit that the applicant could not deal in
seedlings without having license. He urged to dismiss
the application.
9. Before I proceed to embark upon examination
of merits, it is worthy to be noted that the Protest
Petition filed by Liaison Officer of the Respondent
No.2 reveals that the applicant supplied 50% of the
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plants as per the terms of the agreement and agreed to
supply the remaining quantity within six (6) months.
It is asserted that the applicant supplied inferior
and cheap quality of the seedlings and did not provide
service for a term of five (5) years as per the
agreement. The Protest Petition further shows that
after institution of the complaint case by the
applicant and the counter F.I.R. there took place
certain compromise between the parties. The relevant
averments made in paras 15 and 16 of the Protest
Petition are rather significant and hence, are
reproduced for ready reference.
"15. The complainant submits that
though the accused had compromised the
matter, he has again not kept up his
commitments. The accused has filed
contempt petition against the I.O. also
in Trial Court at Calcutta. It is
pertinent to note that on 3 occasions
when the accused was produced by the
police before this Honourable Court, the
accused has not made any complaint of
ill-treatment at the hands of the police.
It is very evidence that, the police have
acted under pressure and allowed the
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accused to go scot-free from the clutches
of law.
16. The complainant submits that in
the month of March, 2006, the accused
telephoned Dr.Desarda and expressed his
willingness to perform his part of
obligations as per the agreements and
requested to withdraw the complaint i.e.
F.I.R. No.033-2005. The complainant
submits that there was a notarised
agreement
ig between the accused and
Dr.Desarda as per which the accused
agreed to supply the short supplied
quantities and replace the died plants.
However, the accused once again cheated
Dr.Desarda and did not perform his
obligation and on the contrary made false
allegation against the Police also.”
10. The learned Judicial Magistrate did not
consider the above averments made in the Protest
Petition. There is absolutely no reference to the
averments in the Protest Petition and consideration of
the record by the learned Judicial Magistrate when he
proceeded to dis-agree with the report filed by the
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Investigating Officer. The averments in para 15 would
make it manifest that the parties had arrived at terms
of settlement. The grievance was that thereafter the
applicant did not keep his commitment. In other
words, it is conspicuous that the parties agreed to
abandon the allegations regarding commission of
offences by each other. It is also explicit that
somewhere in March 2006, the applicant again expressed
willingness to perform his part of the contracts. The
F.I.R. does not show that any survey was conducted by
an expert to say that 50% of the saplings were of
inferior quality.
ig There is probability that the
applicant committed negligence in the performance of
his part of the terms of the agreements and thereafter
the parties were on cross terms. It is also probable
that the applicant lost his interest due to
nonfulfillment of the terms of the agreement by the
Respondent No.2. This Court is not the fact finding
Court and as such no opinion as regards either
probability can be expressed from the available
record. What emerges from the record is that the
dispute between the parties is of Civil nature. It
arose due to breach of the terms of the agreements
settled between them.
11. True, the applicant does not have any
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license to deal in the business of seedlings/saplings.
Mr.Soman, would invite my attention to the provisions
of Section 2(11)(iv) alongwith the provisions of the
Seeds (Control) Order 1983. I find it difficult to
countenance contention of Mr.Soman that the applicant,
prima facie, has committed any offence, punishable U/s
19 of the Seeds Act, 1966. The license is required
under the Seeds (Control) Order 1983, but the
violation of the same is not punishable under the
provisions of Section 19 of the Seeds Act, 1966. The
Seeds (Control) Order 1983 is issued under Section 3
of
the Essential Commodities Act. Obviously, on the
basis of a private complaint offence regarding
violation of the Seeds (Control) Order 1983, cannot be
taken cognizance of. Nor any such allegation is made
in the F.I.R. The learned Judicial Magistrate also
did not take cognizance of the offence under
provisions of the Seeds Act, 1966. Consequently, I
find that contention of Mr.Soman, in this behalf, is
besides the scope of the present matter. He further
submits that large number of other customers made
similar complaints against the applicant. The similar
complaints by other customers do not bolster the case
of the Respondent No.2. For the purpose of taking
cognizance of offence, a prima facie case ought to
exist. The allegations in the F.I.R. need to be
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considered on the face value thereof. If it can be
said that from such allegations prima facie material
is available to proceed against the accused then the
learned Magistrate would be justified in taking
cognizance on the basis of such F.I.R.
12. The fact situation in the present case would
make it explicit that the employee of the Respondent
No.2 lodged the F.I.R. without specific material to
infer existence of dishonest intention on part of the
applicant at the very inception. The offence of
cheating
is defined U/s 415 of the I.P.C. The F.I.R.
does not show existence of fraudulent intention since
inception of the transactions between the parties.
The Apex Court in “Inder Mohan Goswami and another Vs.
State of Uttaranchal and others” 2007 AIR SCW 6679,
observed in para 41 of its judgment :-
“To hold a person guilty of cheating it
is necessary to show that he had a
fraudulent or dishonest intention at the
time of making the promise. From his
mere failure to subsequently keep a
promise, one cannot presume that he all
along had a culpable intention to break
the promise from the beginning.”
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The Apex Court observed that the Court must ensure
that Criminal prosecution is not used as instrument of
harassment or for seeking private vendetta or with
ulterior motive to pressurise the accused. Similarly,
in “Minu Kumari and another Vs. State of Bihar and
others” AIR 2006 Supreme Court 1937 and “Municipal
Corporation of Delhi Vs. Ram Kishan Rohtagi and
others” AIR 1983 Supreme Court 67, the Apex Court
succinctly explained the scope of Section 482 of the
Cr.P.C. The Apex Court in “M/s Kunstocom Electronics
(I) Pvt. Ltd.
ig Vs. Gilt Pack Ltd. and another” AIR
2002 Supreme Court 739, held that in case of Civil
dispute, the offence would not come within ambit of
Section 415 of the I.P.C. and the process was liable
to be quashed.
13. Mr.Soman, seeks to rely on “Alpic Finance
Limited Vs. P.Sadasivan And Another” A.I.R. 2001
Supreme Court 1226, “Shri Vijay Kumar And others Vs.
Union of India and others” A.I.R. 1998 Supreme Court
2062 and a judgment of Division Bench of this Court in
“Criminal Writ Petition No.415/2003 (Coram :
J.N.Patel and S.T.Kharche, JJ.) decided on 6.10.2004″.
There are cases and cases. In “Alpic Finance Limited”
(supra), the Apex Court held that merely because an
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act has a civil profile is not sufficient to denude it
of its criminal outfit. It is not necessary to
elaborately to deal with the other case law cited by
Mr.Soman. Suffice it to say that the material on
record, including the averments in the F.I.R., do not
bring on surface of the record any substratum to infer
presence of dishonest intention of the applicant at
the inception of the transactions between him and the
Respondent No.2, nor the money paid to him in
pursuance to the terms of the agreement can be
regarded as “entrustment”. The averments in the
F.I.R. are
not germane to constitution of any
Criminal offence nor the learned Judicial Magistrate
ascribed any valid reasons to proceed against the
applicant. His simple disagreement with the Police
report cannot be foundation to proceed against the
applicant without there being any tangible reason
recorded by him. The impugned order is arbitrary and
amounts to colourable exercise of the judicial power.
Under these circumstances, I have no hesitation in
holding that the impugned order and the Criminal
proceedings amount to abuse of the process of the
Court.
14. For the reasons aforestated, the application
is allowed. The impugned order and the Criminal
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proceedings instituted in pursuance to Crime
No.I-33/2005 are hereby quashed. The bail bonds of
the applicant, if any, be deemed as cancelled as he
stands discharged.
(V.R.KINGAONKAR,J.)
Authenticated Copy
(Pvt.Secy. to Hon’ble Judge)
asp/Crapp169206
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