JUDGMENT
D.P. Singh, J.
1. Heard both sides at length.
2. The present criminal miscellaneous petition has been preferred by Gulf Oil Corporation Ltd. and others connected with the affairs of the said Firm against order dated 8.8.2007 by the Judicial Magistrate, 1st Class, Jamshedpur in Complaint Case No. 421 of 2007 under Section 420 of the Indian Penal Code against them.
3 Brief facts in short leading to this petition are that the opposite party No. 2, M/s S.N. Ghosh was appointed as (C & F) Agent for clearance and distribution of the products of Gulf Oil Corporation Ltd. for M/s R.M. Autolube and M/s S.N. Ghosh and Company having its offices at Kolkata and Jamshedpur, for the town of Jamshedpur and Ranchi on 1.11.1998 in furtherance of the terms and agreement dated 14.8.1998. According to the complainant, he developed the business of the petitioner-Company to flourish. However, the accounts showing the deposit of cheques sent towards payment of supply of goods by the petitioner was not properly maintained with intention to deprive the right of the opposite party No. 2 as (C & F) Agent of the Company. It has further been stated in the complaint petition that later on false pretext, a case for liquidation of the Company of the opposite party No. 2 was initiated by the petitioners resulting in Criminal cases and civil suits between the parties at Kolkata. Thus, the petitioners have committed the offences under Sections 406 and 409 etc. of the Indian Penal Code for which the complaint has been preferred. However, the learned court below after enquiry having considered the materials on record found that a prima facie case has been made out under Section 420 of the Indian Penal Code and summonses were directed to be issued.
4. The present petition has been preferred in February 2008 challenging the order dated 8.8.2007 and praying therein to quash the cognizance taken by the impugned order on the grounds that the facts on record do not disclose any ingredient of any offence, rather, it discloses disputes of civil nature. It has also been asserted that with the facts admitted on record, the opposite party No. 2 was an Agent of the petitioner-Company, who has already preferred a civil suit bearing Title Suit No. 60 of 2007 pending before the Court of Sub-Judge, Jamshedpur for realization of the deposited amount of Rs. 15,00,000/- (fifteen lakhs). Therefore, the criminal case filed on the basis of non-accounting of the said cheques cannot be gone into by a Criminal Court. It has also raised finger upon the capacity of the opposite party No. 2 to file criminal case against the petitioners on behalf of two different firms. The miscellaneous petition further mentions that opposite party No. 2 was appointed as stockiest by the petitioner-firm and during year 1999; Rs. 82.98 lakhs have become due in respect of the goods supplied to the opposite party No. 2. It further mentions that for alleged irregularity, petitioners filed the complaint resulting in registration of Shakeshpeare Sarani Police Station Case No. 63 of 2001 under Sections 409, 467 and 471 of the Indian Penal Code. It further mentions that a suit has been preferred by the petitioner, Civil Suit No. 144 of 2002 against the opposite party No. 2 and others for a huge sum of Rs. 1,03,78,385/- and Rs. 63,13,662/- against the opposite party No. 2 and other firms, resulting in series of proceedings before the Hon’ble Kolkata High Court. It further mentions that for these proceedings, the properties of opposite party No. 2 and M/s R.M. Autolube Pvt. Ltd. has been attached and a Receiver was appointed, resulting the present false case.
5. It has also pointed out that the complaint itself indicates the date of occurrence “continuously after January 2007”. As such, cognizance taken against the alleged offence, which apparently took place in the year 1999, deserves to be quashed. Therefore, the offence, if any, committed after January 2007 could not be related with the allegation that the amounts paid through cheque in the year 1998-1999 admittedly in favour of the petitioners could be used to cheat the opposite party No. 2.
6. Mr. Kalyan Roy, learned Counsel appearing on behalf of the petitioners stressed the abovementioned points and submitted that the disputes between the parties are of civil nature, as the payments allegedly made by the opposite party No. 2 have not been properly accounted by the petitioners. Mr. Roy, further pointed out that for this non-accounting, a civil suit has already been preferred by the opposite party No. 2. Therefore, any criminal liability on this count does not arise. In this context, Mr. Roy, point out towards the fact that vide Annexure-2, certain amounts have been shown to be deposited and enchased from 30.6.1998 to 24.2.1999 and vide Annexure- 4, a notice for contempt has been issued against the opposite party No. 2 and others for violating the order dated 30.9.2003 of the Hon’ble High Court at Kolkata in connection with G.A. No. 2894/2003 and C.S. No. 149 of 2002. It is also submitted that vide Annexure-5 series, the resignation of petitioner Nos. 2, 3 and 4 have been accepted by the Company far back on 2nd of May 2002, 28th of January 2004 and 30th of March 2006. Therefore, the cognizance taken against the petitioner may be quashed.
In support of this contention, Mr. Roy relied upon 2006 (6) Supreme 66 Indian Oil Corporation v. NEPC India Ltd and Ors. and 2005 (2) Supreme 59 Suresh v. Mahadevappa Shivappa Danannava and Anr.
7. Mr. A.K. Kashyap, learned senior counsel appearing on behalf of the opposite party No. 2 vehemently opposed these contentions and stressed that merely because the offence was committed in course of contractual obligations and being camouflaged as dispute of civil nature was not sufficient to quash the cognizance taken after due enquiry and the ingredients of offence under Section 420 of the Indian Penal Code has been made out. Learned Counsel relying upon a decision reported in the case of Rajesh Bajaj v. State of NECT of Delhi and Ors. , submitted that the Hon’ble Apex Court has observed that precautions need to be exercised whenever the question of quashing of cognizance or trial is taken up by the High Court. According to Mr. Kashyap, quashing should be allowed only in rare cases and this extraordinary inherent power should be exercised with care and caution.
8. I have gone through the complaint petition, the impugned order dated 8.8.2007 as well as the annexures filed on behalf of the petitioners. Undisputedly, the petitioners and the opposite party No. 2 as firm have entered into commercial transactions with the petitioners. Opposite party No. 2 serving the petitioner’s company used to carry on the sale and distribution of the products of the petitioner-company till the month of February 1999. Thereafter, relations could not remain cordial and litigations started. Annexure-2 mentions that Rs. 15 lakhs were deposited by the complainant-S.N. Ghosh and associate firm, which was enchased by the petitioner-firm. Then several litigations regarding liquidation of the firm etc. before the Kolkata High Court have been decided in favour of the Gulf India Corporation Ltd. vide Annexure-4. It also appears that Title Suit No. 60 of 2007 has been preferred by the complainant- opposite party No. 2 against this firm before the Court of Sub-Judge, Jamshedpur in February 2007. Thereafter, the present complaint has been preferred alleging that the petitioner-firm in connivance with the other petitioners manipulated the account by not showing the payments as and when made under appropriate headings. It is undisputed fact that cheques were issued in favour of the petitioner-firm. The transactions admittedly have taken place in 1998-1999 whereas the complaint has been lodged in 2007. In 2005 (2) Supreme 59, their Lordships quashed the cognizance since the allegations in the complaint were of civil nature as well the complaint was lodged after much delay of nearly about eleven years.
9 In AIR 2008 SCW 1993, the Hon’ble Apex Court having occasion to consider the grounds on which High Court may exercise its jurisdiction under Section 482 Cr.P.C., quashed the proceeding under Section 403, 405 and 415 of the I.P.C. Paragraph No. 9 may be quoted usefully here for better appreciation of the facts in present case.
In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. The facts of the present case as made out in the complaint case No. 421 of 2007 discloses that the alleged occurrence took place during contractual relationship between the parties. According to the opposite party, cheques worth Rs. 15 lakhs or more issued in favour of the petitioner Gulf Oil Corporation were not accounted for in appropriate heads giving rise to several proceedings for realization of the amount from him. Those aspects have been taken care in civil litigation before the Hon’ble Kolkata High Court. Admittedly Shakespeare Sarani police station case No. 63 of 2001 was lodged by the petitioner against the complainant. The complainant opposite party has preferred a civil suit for realization of the same amount through title suit No. 60 of 2007 at Jamshedpur. It is also admitted fact on record that the present complaint was lodged after the said suit was filed in which the same amount is the subject mater of alleged cheating.
11. In the facts stated above, it is apparent that for alleged improper accounting of the amount in question several proceedings have already been decided by the parties. The present complaint case has been filed after nearly eight and half years. The complaint petition discloses that the offences occurred after January 2007 which is controverted with facts on record, since the amounts were not accounted properly under the appropriate heads in the year 1999. The offences may not be continuing because contractual relationship between the parties have already ended in the month of February’ 1999. Thereafter no transaction took place between the parties rather litigation started for one or other contractual obligation. Therefore the alleged offence of cheating could not have continued or occurred after January 2007. Even if the submission is accepted the complaint appears filed after much delay for more than eight years for reasons an explained. It is apparent that the complaint is lodged after eight years for an account which has been subject matter of civil litigations during this period between the parties. The complainant has further field a suit for realization of the amount in question vide Title Suit No. 60 of 2007 at Jamshedpur.
12. In Indian Oil Corporation v. NCPC India Limited , their Lordships has deprecated such practices of misuse of criminal process to put undue pressure in civil dispute. Both sides having relied upon this decision contended regarding the continuation of the criminal proceeding. However, in view of the facts already discussed above, It is apparent that the complainant having exhausted the remedies in civil proceeding preferred this complaint case after more than eight years. The complainant has further filed a suit and thereafter this complaint petition in both of which the bone of contention is proper accounting. It is also apparent that three of the petitioners i.e. Petitioner Nos. 2, 3 and 4 are no more in service of the first petitioner.
13. Having regards to all the facts and circumstances discussed above, I find that the continuation of the criminal proceeding against the petitioners cannot be maintained.
In result, the cognizance taken by the learned lower court dated 8.8.2007 is hereby quashed and this criminal miscellaneous application is allowed.