{"id":177615,"date":"2009-06-09T00:00:00","date_gmt":"2009-06-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/delhi-vs-union-territory-of-daman-on-9-june-2009"},"modified":"2017-07-05T18:44:59","modified_gmt":"2017-07-05T13:14:59","slug":"delhi-vs-union-territory-of-daman-on-9-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/delhi-vs-union-territory-of-daman-on-9-june-2009","title":{"rendered":"Delhi. vs Union Territory Of Daman & on 9 June, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Delhi. vs Union Territory Of Daman & on 9 June, 2009<\/div>\n
Bench: Ranjana Desai, Rajesh G. Ketkar<\/div>\n
    AJN\n                                1\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                         \n               CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                 \n          CRIMINAL WRIT PETITION NO.442 OF 2009\n\n\n\n\n                                                \n    Prashant Jhunjhunwala s\/o. Late     )\n    Shri Rajkumar Jhunjhunwala,         )\n    R\/o. J-1\/76, Gupta Colony, Khirki   )\n    Extension, Malviya Nagar, New       )\n\n\n\n\n                                   \n    Delhi.                              ) ...       Petitioner\n\n              Versus\n                       \n                      \n    1. Union Territory of Daman & )\n       Diu, through its Secretary, )\n       Daman & Diu at Daman.       )\n    2. State of Maharashtra             )\n        \n\n\n    3. Police Sub-Inspector, Daman )\n       Police Station, Nani, Daman. )\n     \n\n\n\n    4. Shri Kamal Kumar Bagla, Age      )\n       40 years, Occu. Service,         )\n       Power of Attorney Holder of      )\n\n\n\n\n\n       M\/s. Century Pulp & Paper        )\n       Division of M\/s. Century         )\n       Textile & Industries Limited,    )\n       having its marketing office      )\n       at 411-413, 4th Floor, Laxmi     )\n\n\n\n\n\n       Deep Building, Laxmi Nagar,      )\n       District Center, Delhi - 110     )\n       092.                             ) ....     Respondents\n\n\n    Mr. Niteen Pradhan i\/b Mr. S.D. Khot and Mr. M. Pradhan\n    for the petitioner.\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:37:52 :::\n     AJN\n                                  2\n\n    Ms. P.H. Kantharia, A.P.P. for the State.\n\n\n\n\n                                                                        \n    Mr. D.A. Nalawade for respondent.\n\n\n\n\n                                                \n    Mr. S. Malik with Mr. Santosh Mishra i\/b Mr. B.D. Chauhan\n    for the original complainant.\n\n\n\n\n                                               \n                       CORAM : SMT. RANJANA DESAI &\n                               R.G. KETKAR, JJ.\n<\/pre>\n
                       DATE ON WHICH THE JUDGMENT IS
\n                       RESERVED : 28TH APRIL, 2009.\n<\/p>\n
                       DATE ON WHICH THE JUDGMEMT IS
\n                       PRONOUNCED : 9TH JUNE, 2009.\n<\/p>\n
    JUDGMENT.:- (Per Smt. Ranjana Desai, J.)<\/p>\n
    1.    Rule. Rule made returnable forthwith. Respondents<\/p>\n
    waive service.     By consent of the parties, taken up for<\/p>\n
    hearing and final disposal.\n<\/p>\n
    2.    In this petition filed under Article 226 of the<\/p>\n
    Constitution of India and under Section 482 of the<\/p>\n
    Criminal Procedure Code, 1973 (for short, “the Code”), the<\/p>\n
    petitioner   has   prayed   that   First   Information           Report<\/p>\n
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\n     AJN
\n                                       3<\/span><\/p>\n
    bearing Crime No.M\/01\/06 dated 8\/2\/2006 registered at<\/p>\n
    P.S. Daman (for short, “the said complaint”) be quashed<\/p>\n
    and   set   aside.        He   has      also    prayed        for    certain<\/p>\n
    consequential reliefs.\n<\/p>\n
    3.    Since the petitioner is seeking quashing of the said<\/p>\n
    complaint, it is necessary to examine its contents. Gist of<\/p>\n
    the said complaint is as follows:\n<\/p>\n
          a)    The 4th Respondent in the petition is the<\/p>\n
                complainant and is the power of attorney<\/p>\n
                holder   of   M\/s.     Century      Pulp      &    Paper<\/p>\n
                Division of M\/s. Century Textile & Industries<\/p>\n
                Limited (for convenience, “the complainant<\/p>\n
                company”).           M\/s.    Shiv    Ganga         Paper<\/p>\n
                Converters     Private      Limited      is     the      1st<\/p>\n
                accused in the complaint (for short, “the<\/p>\n
                accused company”). It is a private limited<\/p>\n
                company, having its industrial units at<\/p>\n
                Daman, Kota (Rajasthan) and Rudrapur<\/p>\n
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\n     AJN
\n                                   4<\/span><\/p>\n
               (Uttaranchal).           The     1st       accused<\/p>\n
               manufactures      note   books    and,        hence,<\/p>\n
               requires paper.    The petitioner is the 2nd<\/p>\n
               accused. He is the director of the accused<\/p>\n
               company. The 3rd accused – Arun Kejariwal,<\/p>\n
               the 4th accused – Smt. Usha Kejariwal and<\/p>\n
               the 5th accused – Nikhil Kejariwal are the<\/p>\n
               directors of the accused company.                They<\/p>\n
               are related to each other. The 6th Accused<\/p>\n<\/blockquote>\n
               – B.K. Mehta and the 7th accused – Vinod<\/p>\n
               Tiwari are the managers of both the units<\/p>\n
               of the 1st accused at Daman. M\/s. Narsingh<\/p>\n
               Das & Co. is the authorised dealer of the<\/p>\n
               complainant company.<\/p><\/blockquote>\n
          b)   The complainant company entered into an<\/p>\n
               agreement with the accused company to<\/p>\n
               sell to the latter 4000 M.T. of paper over a<\/p>\n
               contractual period beginning from 1\/4\/2005<\/p>\n
               and ending on 31\/3\/2006.               As per the<\/p>\n
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\n     AJN
\n                                       5<\/span><\/p>\n
               agreement, payments were to be made<\/p>\n
               within     30    days       of     the    goods         being<\/p>\n
               dispatched, in default of which interest was<\/p>\n
               to be charged.\n<\/p>\n
          c)   Initially, the accused company was regular<\/p>\n
               in payments. In the first week of January,<\/p>\n
               2006, instead of depositing three cheques<\/p>\n
               in   the   Corporation           Bank,    the      accused<\/p>\n
               company deposited only one cheque and<\/p>\n
               other two cheques were deposited later.\n<\/p>\n
               The balance amount of Rs.1,73,73,212\/-\n<\/p>\n
               was      outstanding             from    the       accused<\/p>\n
               company till 22\/12\/2005 which the accused<\/p>\n
               company         ought       to    have     paid       before<\/p>\n
               22\/1\/2006.       As the accused company was<\/p>\n
               not making the payment, the complainant<\/p>\n
               company          approached              the       accused<\/p>\n
               company on 28\/1\/2006.                    The petitioner<\/p>\n
               gave an excuse that there were disputes<\/p>\n
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\n     AJN
\n                                6<\/span><\/p>\n
          between the directors and he was not able<\/p>\n
          to    make    any     payment.          After       long<\/p>\n
          pursuation,    the     3rd    accused     i.e.     Arun<\/p>\n
          Kejariwal promised to make part payment.\n<\/p>\n
          He handed over two cheques of Rs.10 lakhs<\/p>\n
          one dated 31\/1\/2006 and another dated<\/p>\n
          2\/2\/2006 and authorization for return of<\/p>\n
          100 M.T. paper of the value of Rs.35 lakhs.<\/p>\n
          He asked the complainant company to<\/p>\n
          approach      the    4th     respondent      for      the<\/p>\n
          outstanding amount.           There was express<\/p>\n
          promise to make payment of the dues in<\/p>\n
          the first week of February, 2006. When the<\/p>\n
          complainant approached the 2nd accused,<\/p>\n
          he promised to make the payment in kind<\/p>\n
          by returning 250 M.T. paper from Daman<\/p>\n
          and    100    M.T.     paper     from      Rudrapur<\/p>\n
          (Uttaranchal). On 3\/2\/2006, he authorised<\/p>\n
          the complainant and M\/s. Narsingh Das &<\/p>\n
          Co. to receive the said paper. The value of<\/p>\n
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\n     AJN
\n                                 7<\/span><\/p>\n
               350 M.T. paper was about Rs.1,15,00,000\/-.\n<\/p>\n
          d)   On 6\/2\/2006, the complainant went to<\/p>\n
               Daman to receive 250 M.T. of paper from<\/p>\n
               the units of Bhimpore, Nani Daman.             The<\/p>\n
               complainant learnt that there are number<\/p>\n
               of creditors of the accused to whom the<\/p>\n
               accused had not made payment.                  The<\/p>\n
               complainant contacted the 6th accused,<\/p>\n
               that is, B.K. Mishra, General Manager of the<\/p>\n
               accused company for delivery of paper.\n<\/p>\n
               However, he refused to give delivery by<\/p>\n
               saying that he will not accept the order of<\/p>\n
               the 2nd accused. When the 2nd accused was<\/p>\n
               contacted on phone, he replied that he had<\/p>\n
               never consented for delivery of paper.\n<\/p>\n
          e)   The complainant learnt that the accused<\/p>\n
               who are from one family and who claim to<\/p>\n
               be directors of the accused company had<\/p>\n
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\n     AJN
\n                                      8<\/span><\/p>\n
               diverted      all    their     funds          in      benami<\/p>\n
               transactions since last few months.                         They<\/p>\n
               had purchased properties in the name of<\/p>\n
               their relatives at Faridabad – Gurgaon Road<\/p>\n
               and formed another company by name M\/s.<\/p>\n
\n\n               Aastha     Agriculture        Private          Limited          in\n\n\n\n\n                                           \n               Gauhati (Assam).             The 5th accused had\n                          \n<\/pre>\n
               wound up all his Daman units and shifted<\/p>\n
               to Kota with his family.\n<\/p>\n
          f)   Though there was no business and the<\/p>\n
               accused    had       not     paid     money            to     the<\/p>\n
               suppliers, the accused purchased large<\/p>\n
               quantity    of      paper.      They            made         the<\/p>\n
               complainant         believe         that        they         had<\/p>\n
               purchased crores of rupees worth paper.\n<\/p>\n
               Just to avoid payment and to make a show<\/p>\n
               that   they      had   honest         intentions,             the<\/p>\n
               accused gave authorization dated 3\/2\/2006<\/p>\n
               to receive 250 M.T. paper which was not<\/p>\n
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\n     AJN
\n                                           9<\/span><\/p>\n
                    honoured by them.            They diverted their<\/p>\n
                    funds and formed another company.                         All<\/p>\n
                    the accused are thus party to a criminal<\/p>\n
                    conspiracy. They have committed offence<\/p>\n
                    under Section 420 read with Section 120-B<\/p>\n
                    of the Indian Penal Code (for short, “the<\/p>\n
                    IPC”).\n<\/p>\n
    4.       The said complaint was registered under Section 420<\/p>\n
    read with Section 120-B of the IPC at P.S. Daman against<\/p>\n
    the petitioner and five other accused.\n<\/p>\n
    5.       We     have     heard   Mr.       Pradhan,     learned          counsel<\/p>\n
    appearing for the petitioner. He submitted that a purely<\/p>\n
    civil dispute has been given the colour of a criminal<\/p>\n
    offence. He submitted that this is a dispute about goods<\/p>\n
    sold and delivered and payments allegedly not received<\/p>\n
    for the same. Criminal law could not have been set into<\/p>\n
    motion on these facts. Mr. Pradhan submitted that, after<\/p>\n
    filing     of    the     said    complaint,      on       20\/6\/2006,             the<\/p>\n
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\n     AJN
\n                               10<\/span><\/p>\n
    complainant-company has filed a suit in the Delhi High<\/p>\n
    Court, which is pending adjudication. The civil suit must,<\/p>\n
    therefore, be allowed to be prosecuted and the criminal<\/p>\n
    complaint ought to be quashed.        In support of his<\/p>\n
    submissions, learned counsel relied on the judgments of<\/p>\n
    the Supreme Court in Alpic Finance Ltd.                   v.       P.\n<\/p>\n
    Sadasivan & Anr., (2001) 3 SCC 513, Hridaya Ranjan<\/p>\n
    Prasad Verma & Ors.\n<\/p>\n
                        ig     v.   State of Bihar & Anr.,\n\n    (2000) 4 SCC 168, Vir Prakash Sharma                   v.       Anil\n                      \n<\/pre>\n
    Kumar Agarwal & Anr., (2007) 7 SCC 373, Ajay<\/p>\n
    Mitra v. State of M.P. & Ors.,<\/a> (2003) 3 SCC 11, G.\n<\/p>\n
    Sagar Suri & Anr.     v.   State of U.P., (2000) 2 SCC<\/p>\n
    636 and Indian Oil Corpn.       v.   NEPC India Ltd. &<\/p>\n
    Ors., (2006) 6 SCC 736.\n<\/p>\n
    6.    Learned counsel then urged that, in fact, the<\/p>\n
    complainant-company and the accused had settled the<\/p>\n
    dispute.   He drew our attention to the annexures to the<\/p>\n
    petition. He pointed out that on 8\/5\/2006, a pursis came<\/p>\n
    to be filed in the Court of Chief Judicial Magistrate,<\/p>\n
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\n     AJN
\n                                     11<\/span><\/p>\n
    Daman, which stated that the accused had accepted the<\/p>\n
    liability and consented to give delivery of 227 M.T. of<\/p>\n
    paper   and,   in   the   circumstances,       the      complainant-\n<\/p>\n
    company    consented      that    “the     prosecution         may        be<\/p>\n
    disposed of, even though the civil liability is not affected”.\n<\/p>\n
    Learned counsel pointed out that this pursis is signed by<\/p>\n
    the advocate for the accused and advocate for the<\/p>\n
    complainant-company.\n<\/p>\n
                         ig    It is also signed by Mr. Pradeep<\/p>\n
    Gupta for M\/s. Narsingh Dass & Co., who is the authorized<\/p>\n
    dealer of the complainant-company.             The pursis is also<\/p>\n
    signed by the 3rd accused.            On the same day, affidavit<\/p>\n
    came to be filed by the 3rd accused, inter alia, stating that<\/p>\n
    227 M.T. of paper is to be delivered to the complainant-\n<\/p>\n
    company and, he had decided to honour the challan<\/p>\n
    issued by the petitioner. Mr. Pradhan drew our attention<\/p>\n
    to order dated 8\/5\/2006 passed by I\/C. Chief Judicial<\/p>\n
    Magistrate, Daman, in which he has observed that all the<\/p>\n
    parties to the pursis have admitted the contents and they<\/p>\n
    have also agreed to the compromise agreement. Learned<\/p>\n
    Magistrate has further recorded that all the applications<\/p>\n
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\n     AJN
\n                                12<\/span><\/p>\n
    are disposed of in terms of pursis (Ex-18). Pursis (Ex-18)<\/p>\n
    is signed by the advocate for the complainant-company<\/p>\n
    and the 3rd accused.   Learned counsel submitted that in<\/p>\n
    view of the settlement, this court should quash the<\/p>\n
    complaint as its continuance will be a futile exercise. In<\/p>\n
    this connection, he relied on the Supreme                  Court’s<\/p>\n
    judgment in Nikhil Merchant v. C.B.I. & Anr. (2008)<\/p>\n
    9 SCC 677.\n<\/p>\n
    7.    Learned counsel submitted that in any case, the<\/p>\n
    petitioner had resigned from the directorship of the<\/p>\n
    accused-company on 30\/12\/2005. He drew our attention<\/p>\n
    to an order passed by the Company Law Board, New<\/p>\n
    Delhi, (for short, “the CLB”), dated 16\/1\/2009.                    He<\/p>\n
    submitted that the CLB has accepted that the petitioner<\/p>\n
    has resigned from the directorship of the accused-\n<\/p>\n
    company. The CLB has observed that he shall continue to<\/p>\n
    be on the Board of the accused-company till the accounts<\/p>\n
    are settled. It is observed that the petitioner was able to<\/p>\n
    make out its case of oppression and mismanagement<\/p>\n
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\n     AJN
\n                                      13<\/span><\/p>\n
    resulting in gross-misappropriation of funds and stocks<\/p>\n
    despite the CLB’s orders and, therefore, he shall not be<\/p>\n
    liable for any default subsequent to the date of intimation<\/p>\n
    of disassociation with the affairs of the accused-company.\n<\/p>\n
    Learned counsel submitted that, therefore, in any event,<\/p>\n
    from    the   date   of    the    petitioner’s   resignation            i.e.<\/p>\n
    30\/12\/2005, the petitioner cannot be held responsible for<\/p>\n
    any    mismanagement
\n                          ig     or   offence   committed           by      the<\/p>\n
    accused-company.          Mr. Pradhan submitted that this is<\/p>\n
    therefore a fit case where this court should in exercise of<\/p>\n
    its power under Article 227 of the Constitution of India and<\/p>\n
    Section 482 of the Code quash the said complaint.\n<\/p>\n
    8.     We have also heard Mr. Nalawade, learned counsel<\/p>\n
    appearing for the 1st respondent i.e. Union Territory of<\/p>\n
    Daman and Diu.       Mr. Nalawade submitted that it is well<\/p>\n
    settled that a complaint can be quashed only if on the<\/p>\n
    face of it, it does not disclose any offence.                  Learned<\/p>\n
    counsel submitted that in this case, the said complaint<\/p>\n
    clearly discloses the offence of cheating and, therefore, it<\/p>\n
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\n     AJN
\n                                14<\/span><\/p>\n
    cannot be quashed. Mr. Nalawade submitted that on the<\/p>\n
    said complaint, learned Magistrate has passed an order<\/p>\n
    under Section 156(3) of the Code for inquiry and<\/p>\n
    investigation.   Relying on the judgment of the Supreme<\/p>\n
    Court in T. Vengama Naidu v. T. Dora Swamy Naidu<\/p>\n
    & Ors.,<\/a> (2007) 12 SCC 93, learned counsel submitted<\/p>\n
    that the FIR is to be taken at its face value for adjudging<\/p>\n
    the same.\n<\/p>\n
                 Where investigation is in progress and the<\/p>\n
    police has not submitted a report to the Magistrate, the<\/p>\n
    FIR can be quashed only if there appears to be no offence<\/p>\n
    spelt out in the complaint. At the stage of investigation,<\/p>\n
    the High Court cannot examine the nature of transaction<\/p>\n
    or whether any offence was actually committed by the<\/p>\n
    accused or not. The High Court cannot quash the FIR, at<\/p>\n
    this stage, by examining the nature of the transaction.\n<\/p>\n
    Learned counsel drew our attention to the affidavit in<\/p>\n
    reply filed by Mr. D.M. Jadav, HCB, attached to the Daman<\/p>\n
    Police Station wherein it is stated that there are number<\/p>\n
    of cases relating to bouncing of cheques registered<\/p>\n
    against the accused.    It is also stated that two similar<\/p>\n
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\n     AJN
\n                               15<\/span><\/p>\n
    cases have been filed in Surat and Ahmedabad, and one<\/p>\n
    by Tamil Nadu Print Paper Mills in Chennai Court against<\/p>\n
    the    accused-company.         He submitted that in the<\/p>\n
    circumstances no case is made out for quashing the said<\/p>\n
    complaint.\n<\/p>\n
    9.    We have also heard Mr. Malik, learned counsel<\/p>\n
    appearing for the 4th respondent. He submitted that this<\/p>\n
    is not a case where the complaint does not make out any<\/p>\n
    offence at all. He submitted that an offence under Section<\/p>\n
    420 of the IPC is clearly made out.       Learned counsel<\/p>\n
    submitted that the contention that the dispute is of civil<\/p>\n
    nature is totally misconceived.    He submitted that no<\/p>\n
    settlement was ever arrived at between the accused-\n<\/p>\n
    company and the complainant-company and Narsingh<\/p>\n
    Dass had no authority to settle the dispute.             Learned<\/p>\n
    counsel relied on the judgments of the Supreme Court in<\/p>\n
    Rajesh Bajaj v. State NCT of Delhi & Ors.<\/a> (1993) 3<\/p>\n
    SCC 259, Trisuns Chemical Industry               v.       Rajesh<\/p>\n
    Agarwal & Ors.<\/a> (1999) 8 SCC 686 and an unreported<\/p>\n
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\n     AJN
\n                                16<\/span><\/p>\n
    judgment of the Supreme Court in State of Punjab<\/p>\n
    v. Pritam Chand & Ors.<\/a> in Criminal Appeal No.1069<\/p>\n
    of 2004 dated 11\/2\/2009 and submitted that the<\/p>\n
    petition deserves to be dismissed.\n<\/p>\n
    10. Before we go to the cases cited by Mr. Pradhan, it is<\/p>\n
    necessary to refer to the petitioner’s case that he had<\/p>\n
    resigned from the accused company.          Mr. Jadhav, the<\/p>\n
    investigating officer has stated in his affidavit that the<\/p>\n
    petitioner has written a letter on 3\/2\/2006 in his capacity<\/p>\n
    as the director of the accused company. He has signed<\/p>\n
    the said letter as a director. The complainant has in his<\/p>\n
    affidavit also stated so. Prima facie, this conduct of the<\/p>\n
    petitioner militates against his case that he had resigned<\/p>\n
    from the accused company.        His case of resignation,<\/p>\n
    therefore, cannot be accepted at this stage. It requires to<\/p>\n
    be investigated.\n<\/p>\n
    11. Reliance placed by Mr. Pradhan on the CLB’s order<\/p>\n
    dated 13\/3\/2009 is also misplaced. It is pertinent to note<\/p>\n
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\n     AJN
\n                                  17<\/span><\/p>\n
    that before the CLB, the petitioner who is the 2nd accused<\/p>\n
    had alleged mismanagement of the accused company by<\/p>\n
    accused 3 to 5. It is an internal matter between the<\/p>\n
    directors.   Obviously, the complainant company could<\/p>\n
    never have participated in the proceedings before the<\/p>\n
    CLB. The order shows that accused 3 to 5 admitted that<\/p>\n
    the petitioner was not involved in the affairs of the<\/p>\n
    company      since<\/p>\n
                          November,    2005.      It    is     in     these<\/p>\n
    circumstances        inter alia on the concession made by<\/p>\n
    accused 3 to 5 that the CLB observed that the petitioner<\/p>\n
    shall not be liable for any defaults subsequent to the date<\/p>\n
    of intimation of disassociation with the affairs of the<\/p>\n
    accused company. At this stage, the petitioner cannot be<\/p>\n
    absolved of the allegations made against him on the basis<\/p>\n
    of this order.\n<\/p>\n
    12. We shall now refer to the cases cited by learned<\/p>\n
    counsel.     In Hridaya Ranjan Prasad Verma’s case<\/p>\n
    (supra), the Supreme Court was concerned with a<\/p>\n
    petition filed for quashing of the complaint under Section<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                   18<\/span><\/p>\n
    482 of the Code. In that case, the appellants had agreed<\/p>\n
    to sell land to the 2nd respondent. A cheque in the sum of<\/p>\n
    Rs.11,00,000\/-    was   given to the appellants                 by the<\/p>\n
    respondents.     The appellants executed a registered sale<\/p>\n
    deed and delivered possession of the land. The cheques<\/p>\n
    given by the respondents bounced. The appellants made<\/p>\n
    requests to the respondents for payment of the amount.\n<\/p>\n
    The respondents avoided to make the payment.                           The<\/p>\n
    appellants lodged a complaint under Sections 406, 420<\/p>\n
    and 120-B of the IPC. On the facts before it, the Supreme<\/p>\n
    Court   observed    that     the    ingredients     of     intentional<\/p>\n
    deception on the part of the accused at the beginning of<\/p>\n
    the negotiations had not been expressly stated or<\/p>\n
    indirectly suggested in the complaint. Case of dishonest<\/p>\n
    intention was not made out.               While quashing the<\/p>\n
    complaint, the Supreme Court stated what should be kept<\/p>\n
    in mind while determining the question whether offence of<\/p>\n
    cheating   is   disclosed.     Following     are      the      relevant<\/p>\n
    observations of the Supreme Court.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span><\/p>\n
     AJN
\n                                 19<\/span><\/p>\n
          “15. In determining the question it has to be<\/p>\n
          kept in mind that the distinction between mere
\n          breach of contract and the offence of cheating is
\n          a fine one. It depends upon the intention of the<\/p>\n
          accused at the time of inducement which may
\n          be judged by his subsequent conduct but for this
\n          subsequent conduct is not the sole test. Mere
\n          breach of contract cannot give rise to criminal<\/p>\n
          prosecution for cheating unless fraudulent or
\n          dishonest intention is shown right at the
\n          beginning of the transaction, that is the time
\n          when the offence is said to have been<\/p>\n
          committed. Therefore, it is the intention which
\n          is the gist of the offence. To hold a person<\/p>\n
          guilty of cheating it is necessary to show that he
\n          had fraudulent or dishonest intention at the time
\n          of making the promise. From his mere failure to<\/p>\n
          keep up promise subsequently such a culpable
\n          intention right at the beginning, that is, when he
\n          made the promise cannot be presumed.”\n<\/p>\n
    13. In G. Sagar Suri’s case, a Finance Company had<\/p>\n
    lodged a complaint against the appellants and others<\/p>\n
    alleging that as directors of an Automobile Company they<\/p>\n
    had taken a short-term loan of Rs.50 lakhs from the<\/p>\n
    Finance Company. The cheques drawn by them towards<\/p>\n
    repayment were dishonoured by the bank.                    A criminal<\/p>\n
    complaint    under    Section     138   of       the       Negotiable<\/p>\n
    Instruments Act was pending.       A complaint was filed by<\/p>\n
    the Finance Company inter alia, alleging that the 1st<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                     20<\/span><\/p>\n
    appellant had got the loan with dishonest intention and<\/p>\n
    misrepresentation.      On facts, the Supreme Court found<\/p>\n
    that in the complaint nothing was said as to what was the<\/p>\n
    misrepresentation, what role was played by the appellants<\/p>\n
    and how the Finance Company was duped. All members<\/p>\n
    of the family including the parents of the Managing<\/p>\n
    Director were roped in. A complaint under Section 138 of<\/p>\n
    the Negotiable Instruments Act was pending.                          In the<\/p>\n
    affidavit,   the    Finance    Company     admitted             that       the<\/p>\n
    appellants were not the directors of the company who had<\/p>\n
    taken the loan. The Supreme Court came to a conclusion<\/p>\n
    that there was an attempt to rope in all the members of<\/p>\n
    the family in the complaint and the complaint was filed<\/p>\n
    with a view to getting back the amount advanced by<\/p>\n
    browbeating and terrorizing the appellants with criminal<\/p>\n
    prosecution.       It is against the backdrop of these facts<\/p>\n
    while   quashing      the     complaint   the      Supreme             Court<\/p>\n
    observed that criminal proceedings are not a short cut for<\/p>\n
    other remedies available in law and the High Court has to<\/p>\n
    examine whether matter which is essentially of a civil<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                 21<\/span><\/p>\n
    nature has been given a cloak of criminal offence.\n<\/p>\n
    14. In Alpic Finance’s case, the appellant was a non-\n<\/p>\n
    banking financial company carrying on business of leasing<\/p>\n
    and hire purchase. The 1st respondent was the Chairman<\/p>\n
    and founder Trustee and the 2nd respondent i.e. the wife<\/p>\n
    of the 1st respondent was also a trustee of the trust. The<\/p>\n
    respondents entered into lease agreement with the<\/p>\n
    appellant whereby the appellant agreed to finance the<\/p>\n
    respondent for purchase of dental chairs.            As per the<\/p>\n
    agreement, the respondents were liable to pay rentals<\/p>\n
    quarterly and the appellant       company was to have<\/p>\n
    exclusive right, title and interest in the dental chairs till<\/p>\n
    the hire purchase amount was paid. The appellant made<\/p>\n
    the payment and the respondents bought dental chairs.\n<\/p>\n
    According to the appellant, the respondents were not<\/p>\n
    regular in making payments.         Certain cheques were<\/p>\n
    dishonoured by the bank.     It was their case that certain<\/p>\n
    chairs were found missing and, hence, the respondents<\/p>\n
    had committed offences under Sections 420, 406 and 423<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                22<\/span><\/p>\n
    read with Section 120-B of the IPC. The Supreme Court<\/p>\n
    observed   that   the   appellant’s   case    was        that       the<\/p>\n
    respondents had failed to discharge their contractual<\/p>\n
    obligations.   It was noticed that in the complaint, there<\/p>\n
    was no allegation of fraud or dishonest intention or that<\/p>\n
    the chairs were obtained by any fraudulent inducement or<\/p>\n
    by wilful misrepresentation. On facts, the Supreme Court<\/p>\n
    concluded that it was difficult to discern an element of<\/p>\n
    deception in the whole transaction, whereas it was<\/p>\n
    palpably evident that the appellant had an oblique motive<\/p>\n
    of causing harassment to the respondent by seizing the<\/p>\n
    entire articles through magisterial proceedings.\n<\/p>\n
    15. In Ajay Mitra’s case, the complainant bottling<\/p>\n
    company had entered into bottling agreements with M\/s.\n<\/p>\n
    Cadbury Schweppes Beverages India Private Limited (for<\/p>\n
    short, “M\/s. Cadbury”). The agreements were to continue<\/p>\n
    for a term of five years.    Either party could terminate<\/p>\n
    them at the end of initial term by giving the other party<\/p>\n
    the prescribed notice. One Atlantic Industries (a member<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                23<\/span><\/p>\n
    of Coca Cola Group of industries) purchased trademarks of<\/p>\n
    M\/s.   Cadbury   upon   which    the   bottling      agreements<\/p>\n
    between M\/s. Cadbury and the complainant were assigned<\/p>\n
    to Atlantic Industries. Atlantic Industries gave a notice to<\/p>\n
    the complainant that the bottling agreement shall not be<\/p>\n
    renewed. The complainant then filed a complaint against<\/p>\n
    M\/s. Cadbury, Coca Cola India and some of its officers<\/p>\n
    (appellants i.e. accused 7 to 11 being some of them)<\/p>\n
    alleging that it is M\/s. Cadbury who had approached the<\/p>\n
    complainant and a memorandum of understanding was<\/p>\n
    signed between the two. The complainant was asked to<\/p>\n
    discontinue its brand “Sprint” by M\/s. Cadbury.                    The<\/p>\n
    complainant invested money and modernized its plant to<\/p>\n
    the satisfaction of M\/s. Cadbury and thereafter bottling<\/p>\n
    agreement was entered into between the two.                   It was<\/p>\n
    alleged that Coco Cola India has adopted unfair trade<\/p>\n
    practices and has made wrongful gain. According to the<\/p>\n
    complainant, all the accused had cheated it.              Offences<\/p>\n
    were registered against the accused under Section 420<\/p>\n
    read with Section 34 and Section 120-B of the IPC. The<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                   24<\/span><\/p>\n
    High Court refused to quash the FIR.              On facts, the<\/p>\n
    Supreme Court came to a conclusion that the appellants<\/p>\n
    were not in picture when the complainant spent money on<\/p>\n
    its plant on the basis of agreement entered into with M\/s.\n<\/p>\n
    Cadbury, therefore, there was no intention on their part to<\/p>\n
    deceive the complainant.       The Supreme Court observed<\/p>\n
    that a guilty intention is an essential ingredient of the<\/p>\n
    offence of cheating.\n<\/p>\n
                           ig    The Supreme Court came to a<\/p>\n
    conclusion that the allegations made in the complaint<\/p>\n
    even if they are taken at their face value and accepted in<\/p>\n
    their entirety do not disclose the commission of any<\/p>\n
    offence.     It is in these circumstances, that the Supreme<\/p>\n
    Court quashed the complaint.\n<\/p>\n
    16. In Vir Prakash’s case, the parties had entered into<\/p>\n
    a contract of sale and purchase of goods. The appellant<\/p>\n
    had issued two cheques which had bounced.                            The<\/p>\n
    complainant filed a complaint alleging offences under<\/p>\n
    Sections 406, 409, 420 and 417 of the IPC against the<\/p>\n
    appellant.      The   High    Court   refused    to     quash         the<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                  25<\/span><\/p>\n
    complaint. The Supreme Court noted that the allegations<\/p>\n
    in the complaint did not disclose the ingredients of<\/p>\n
    criminal breach of trust. No act of inducement on the part<\/p>\n
    of the appellant had been alleged.     The Supreme Court<\/p>\n
    further noted that there were some vague unpalatable<\/p>\n
    allegations    about   the   subsequent    conduct           of      the<\/p>\n
    appellant.     It is in this context, while quashing the<\/p>\n
    complaint the Supreme Court observed that the dispute<\/p>\n
    between the parties was essentially a civil dispute and<\/p>\n
    that non-payment or underpayment of the price of the<\/p>\n
    goods by itself does not amount to commission of an<\/p>\n
    offence of cheating or criminal breach of trust.\n<\/p>\n
    17. In Indian Oil Corporation’s case (IOC), the IOC<\/p>\n
    had entered into a contract with the NEPC (India) Limited<\/p>\n
    agreeing to supply aircraft fuel.         According to the<\/p>\n
    appellant, the respondent committed default in making<\/p>\n
    payment.      Complaint was filed under Sections 378, 403<\/p>\n
    and 425 of the IPC.          The High Court quashed the<\/p>\n
    complaint. The Supreme Court held that High Court was<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                  26<\/span><\/p>\n
    not justified in quashing the complaint in its entirety<\/p>\n
    because the allegations in the complaint are sufficient to<\/p>\n
    constitute offences under Section 415 (cheating) and 425<\/p>\n
    (mischief). While allowing the appeal partly the Supreme<\/p>\n
    Court reiterated the following principles:\n<\/p>\n
          (i) A complaint can be quashed where the
\n          allegations made in the complaint, even if they<\/p>\n
          are taken at their face value and accepted in
\n          their entirety, do not prima facie constitute any
\n          offence or make out the case alleged against<\/p>\n
          the accused.\n<\/p><\/blockquote>\n
               For this purpose, the complaint has to be
\n          examined as a whole, but without examining<\/p>\n
          the merits of the allegations. Neither a detailed
\n          inquiry nor a meticulous analysis of the material<\/p>\n
          nor an assessment of the reliability or
\n          genuineness of the allegations in the complaint,
\n          is warranted while examining prayer for
\n          quashing of a complaint.\n<\/p><\/blockquote>\n
          (ii) A complaint may also be quashed where it
\n          is a clear abuse of the process of the court, as
\n          when the criminal proceeding is found to have<\/p>\n
          been initiated with mala fides\/malice for
\n          wreaking vengeance or to cause harm, or where
\n          the allegations are absurd and inherently
\n          improbable.\n<\/p><\/blockquote>\n
          (iii) The power to quash shall not, however, be
\n          used to stifle or scuttle a legitimate prosecution.
\n          The power should be used sparingly and with
\n          abundant caution.\n<\/p><\/blockquote>\n
                                              ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span><\/p>\n
     AJN
\n                                 27<\/span><\/p>\n
          (iv) The complaint is not required to verbatim
\n          reproduce the legal ingredients of the offence
\n          alleged. If the necessary factual foundation is<\/p>\n
          laid in the complaint, merely on the ground that
\n          a few ingredients have not been stated in detail,
\n          the proceedings should not be quashed.
\n          Quashing of the complaint is warranted only<\/p>\n
          where the complaint is so bereft of even the
\n          basic facts which are absolutely necessary for
\n          making out the offence.\n<\/p>\n
          (v) A given set of facts may make out : (a)
\n          purely a civil wrong; or (b) purely a criminal<\/p>\n
          offence; of (c) a civil wrong as also a criminal
\n          offence.     A commercial transaction or a
\n          contractual dispute, apart from furnishing a<\/p>\n
          cause of action for seeking remedy in civil law,
\n          may also involve a criminal offence. As the
\n          nature and scope of a civil proceeding are
\n          different from a criminal proceeding, the mere<\/p>\n
          fact that the complaint relates to a commercial
\n          transaction or breach of contract, for which a<\/p>\n
          civil remedy is available or has been availed, is
\n          not by itself a ground to quash the criminal
\n          proceedings.      The test is whether the
\n          allegations in the complaint disclose a criminal<\/p>\n
          offence or not.\n<\/p>\n
    18. In Trisun’s case, the case of the appellant company<\/p>\n
    was that the accused directors approached him and<\/p>\n
    offered to supply 5450 metric tons of soyabean extracts<\/p>\n
    for a price of nearly four and half crores of rupees. The<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                28<\/span><\/p>\n
    sum was paid through cheques. The accused sent goods<\/p>\n
    of inferior and substandard quality.      The complainant<\/p>\n
    suffered loss of Rs.17 lakhs. According to the appellant,<\/p>\n
    he was induced to pay the price on the representation<\/p>\n
    that the best quality commodity would be supplied.                  On<\/p>\n
    such representation, the price was paid. But by supplying<\/p>\n
    inferior quality, the accused deceived the complainant.\n<\/p>\n
    The High Court inter alia found that there was an<\/p>\n
    arbitration clause in the memorandum of understanding.\n<\/p>\n
    The High Court held that whether the complainant<\/p>\n
    company suffered a loss or not is a matter to be<\/p>\n
    adjudicated by the civil court and not by the criminal<\/p>\n
    court. The High Court observed that the disputes can be<\/p>\n
    resolved through arbitration. The High Court quashed the<\/p>\n
    complaint. The Supreme Court set aside the High Court’s<\/p>\n
    order and observed as under:\n<\/p>\n
             “Quashing of FIR or complaint in exercise
\n             of the inherent powers of the High Court
\n             should be limited to very extreme
\n             exceptions. Merely because an act has a
\n             civil profile is not sufficient to denude it
\n             of its criminal outfit.       The provision<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                 29<\/span><\/p>\n
              incorporated in the agreement for<\/p>\n
              referring the disputes to arbitration is not
\n              an effective substitute for a criminal
\n              prosecution when the disputed act is an<\/p>\n
              offence.    Arbitration is a remedy for
\n              affording reliefs to the party affected by
\n              breach of the agreement but the
\n              arbitrator cannot conduct a trial of any<\/p>\n
              act which amounted to an offence albeit
\n              the same act may be connected with the
\n              discharge of any function under the
\n              agreement. Hence, those are not good<\/p>\n
              reasons for the High Court to axe down
\n              the complaint at the threshold itself. The<\/p>\n
              investigating agency should have had
\n              the freedom to go into the whole gamut
\n              of the allegations and to reach a<\/p>\n
              conclusion of its own. Preemption of
\n              such investigation would be justified only
\n              in very extreme cases.”\n<\/p><\/blockquote>\n
    19. In Rajesh Bajaj’s case, the appellant company was<\/p>\n
    a manufacturer and exporter of garments.                       The 5th<\/p>\n
    respondent approached the complainant for purchase of<\/p>\n
    readymade    garments    and      induced   the appellant                to<\/p>\n
    believe that the 5th respondent would pay the price of the<\/p>\n
    said goods on receiving the invoice.               The appellant<\/p>\n
    believed the complainant and dispatched the goods. But<\/p>\n
    the 5th respondent did not pay the entire outstanding<\/p>\n
    amount.   According to the appellant, he came to know<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                30<\/span><\/p>\n
    later that the respondent had similarly duped several<\/p>\n
    persons to the tune of Rs.10 crores.        According to the<\/p>\n
    appellant, the 5th respondent induced him to believe that<\/p>\n
    he was a genuine dealer but actually his intentions were<\/p>\n
    not clear. The High Court quashed the complaint on the<\/p>\n
    ground that the allegations disclose purely a commercial<\/p>\n
    transaction where seller did not pay the balance purchase<\/p>\n
    price and that there was nothing in the complaint to<\/p>\n
    indicate that the accused had dishonest or fraudulent<\/p>\n
    intention at the time of export of goods.\n<\/p>\n
    20. The Supreme Court set aside the High Court’s order.\n<\/p>\n
    The Supreme Court observed that it is not necessary for<\/p>\n
    the complainant to state in so many words that the<\/p>\n
    intention of the accused was dishonest.         The Supreme<\/p>\n
    Court observed that the complainant had stated in the<\/p>\n
    body of the complaint that he was induced to believe that<\/p>\n
    the respondent would honour payment on receipt of<\/p>\n
    invoices, and the complainant later on realized that the<\/p>\n
    intention of the respondent was not clear.           This would<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                 31<\/span><\/p>\n
    prima facie make out a case for investigation.                   The<\/p>\n
    Supreme Court observed that the crux of the postulate is<\/p>\n
    the intention of the person who induces the victim and not<\/p>\n
    the nature of transaction.    We may quote the relevant<\/p>\n
    observation of the Supreme Court.\n<\/p>\n
             “It may be that the facts narrated in the
\n             present complaint would as well reveal a<\/p>\n
             commercial     transaction   or   money
\n             transaction. But that is hardly a reason
\n             for holding that the offence of cheating<\/p>\n
             would elude from such a transaction. In
\n             fact, many a cheatings were committed
\n             in the course of commercial and also
\n             money transactions.”\n<\/p><\/blockquote>\n
    21. In our opinion the above judgments make it clear<\/p>\n
    that whether a complaint discloses a criminal offence or it<\/p>\n
    involves only a civil dispute depends on facts and<\/p>\n
    circumstances of each case. A complaint may have civil<\/p>\n
    profile but it may also have overwhelming criminal<\/p>\n
    overtones. In such case, a criminal court cannot shut its<\/p>\n
    doors to it. Because a complaint involves a commercial<\/p>\n
    transaction, it cannot be inferred that it contains a civil<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                     32<\/span><\/p>\n
    dispute if ingredients of a criminal offence are present. It<\/p>\n
    is trite that in several commercial transactions, criminal<\/p>\n
    offences are committed.          A case involving a simplicitor<\/p>\n
    dispute about quality and quantity of the goods received<\/p>\n
    and the amount of price to be paid could well be<\/p>\n
    described    as    a    civil   dispute   in   a     given         set      of<\/p>\n
    circumstances.         But where ingredients of cheating or<\/p>\n
    some such offence are evident from a bare reading of the<\/p>\n
    complaint, its criminal nature must be acknowledged.\n<\/p>\n
    Dishonest intention is a hallmark of a criminal complaint.\n<\/p>\n
    Dishonest intention must be present at the inception of<\/p>\n
    the offence.      It must be expressly stated or indirectly<\/p>\n
    suggested in the complaint. It is possible that in a given<\/p>\n
    case, the complainant may later on realize that the<\/p>\n
    intention of the accused was not honest at the inception.\n<\/p>\n
    It may become evident on account of the subsequent<\/p>\n
    conduct of the accused.         In such cases, investigation is<\/p>\n
    necessary. But subsequent conduct is not the sole test to<\/p>\n
    determine whether a complaint has civil or criminal<\/p>\n
    profile.   It can support the case of the complainant that<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                               33<\/span><\/p>\n
    the accused had dishonest intention at the inception of<\/p>\n
    the offence. Where there is an attempt to use a criminal<\/p>\n
    complaint to harass or terrorize a party with a view to<\/p>\n
    forcing it to settle a purely civil dispute such complaint<\/p>\n
    should not be allowed to be prosecuted.            That would<\/p>\n
    amount to abuse of the process of the court.             Criminal<\/p>\n
    complaint which is bereft of ingredient of an offence<\/p>\n
    cannot be allowed to be used as a tool to cut short time<\/p>\n
    consuming civil procedure. At the same time, it must be<\/p>\n
    remembered that the complainant does not have to state<\/p>\n
    verbatim the ingredients of the offence alleged.              Basic<\/p>\n
    facts which disclose offence need to be stated. Presence<\/p>\n
    of an alternative remedy is not a good enough reason for<\/p>\n
    throwing the complaint overboard if it discloses criminal<\/p>\n
    offence, because the alternative forum may not be able to<\/p>\n
    conduct a trial and convict the accused of the offence. A<\/p>\n
    complaint can be quashed where the allegations made in<\/p>\n
    the complaint, even if they are taken at their face value<\/p>\n
    and accepted in their entirety do not prima facie<\/p>\n
    constitute any offence.   For this purpose, the complaint<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                   34<\/span><\/p>\n
    has to be examined as a whole, but without examining the<\/p>\n
    merits of the allegations.     A complaint may be quashed<\/p>\n
    where it is a clear case of abuse of the process of the<\/p>\n
    court or is initiated with mala fides. The power to quash<\/p>\n
    the complaint should not be used to stifle a legitimate<\/p>\n
    prosecution.    This power should be used sparingly and<\/p>\n
    with abundant caution.\n<\/p>\n
    22.     We shall now proceed to examine the said complaint<\/p>\n
    in the light of the above principles. We, however, make it<\/p>\n
    clear that we have not examined the merits of the<\/p>\n
    allegations and all observations made by us are prima<\/p>\n
    facie    observations   made    while   deciding      whether           if<\/p>\n
    allegations made in the complaint are taken at their face<\/p>\n
    value, they prima facie constitute any offence or not.\n<\/p>\n
    23. The facts disclose that there was an agreement to<\/p>\n
    supply paper between the complainant company and the<\/p>\n
    accused company and initially the accused company was<\/p>\n
    making regular payments.            This agreement is dated<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                35<\/span><\/p>\n
    2\/4\/2005.   The balance amount of Rs.1,73,73,212\/- was<\/p>\n
    outstanding from the accused till 22\/12\/2005 which ought<\/p>\n
    to have been paid before 22\/1\/2006.              The accused<\/p>\n
    avoided to make the payment. These facts by themselves<\/p>\n
    may create an impression that this is a civil dispute. But<\/p>\n
    read in the context of other facts they prima facie disclose<\/p>\n
    a criminal offence. Accused 3 to 5 are closely related. It<\/p>\n
    is clearly stated in the complaint that though there was<\/p>\n
    no business and the accused had not paid money to the<\/p>\n
    suppliers, the accused purchased large quantity of paper.\n<\/p>\n
    They made the complainant believe that they had<\/p>\n
    purchased crores of rupees worth paper and to avoid<\/p>\n
    payment and to make a show of their so-called honest<\/p>\n
    intention the petitioner issued an authorization dated<\/p>\n
    3\/2\/2006 on the basis of which the complainant was to<\/p>\n
    receive the paper back.       The authorization was not<\/p>\n
    honoured. The averment that the accused purchased the<\/p>\n
    paper though they had no business and had not paid their<\/p>\n
    suppliers; that they made the complainant believe that<\/p>\n
    they had purchased paper worth crores of rupees prima<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                   36<\/span><\/p>\n
    facie make out a case of dishonest intention at the<\/p>\n
    inception of the offence. In our opinion, averments made<\/p>\n
    in the complaint expressly state that the accused had<\/p>\n
    mala fide intention at the inception of the offence and at<\/p>\n
    any rate they indirectly suggest so.\n<\/p>\n
    24. The averment pertaining to the authorization issued<\/p>\n
    by the petitioner which was not honoured is equally<\/p>\n
    important.    It is stated in the complaint that when the<\/p>\n
    complainant went to Daman and met the 6th accused – the<\/p>\n
    Manager of the accused company for delivery of paper, he<\/p>\n
    refused to abide by the authorization. When he contacted<\/p>\n
    the petitioner on phone, the petitioner stated that he had<\/p>\n
    never consented for return of papers.              The subsequent<\/p>\n
    conduct of the accused in issuing authorization which was<\/p>\n
    not honoured, of not paying the suppliers; of diverting<\/p>\n
    their funds in benami         transactions, etc. fortify the<\/p>\n
    complainant’s case that the accused had dishonest<\/p>\n
    intention    at   the   inception   of   the     offence.         Though<\/p>\n
    subsequent conduct is not the sole test to determine<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                 37<\/span><\/p>\n
    whether there is dishonest intention, it is not irrelevant<\/p>\n
    (Hridaya Ranjan’s case). In Rajesh Bajaj’s case, the<\/p>\n
    Supreme Court has made it clear that it is not necessary<\/p>\n
    for the complainant to state in so many words that the<\/p>\n
    intention   of   the   accused    was    dishonest.             If    the<\/p>\n
    complainant states in the complaint that he was induced<\/p>\n
    to believe that the accused would make the payment and<\/p>\n
    later on he realized that the intention of the accused was<\/p>\n
    not clear, it is a matter for investigation.          The present<\/p>\n
    case is clearly covered by this observation.\n<\/p>\n
    25. It is also stated in the said complaint that the<\/p>\n
    accused who come from one family have diverted their<\/p>\n
    funds in Benami transactions.           They have purchased<\/p>\n
    properties in the names of their relatives in Faridabad-\n<\/p>\n
    Gurgaon Road and formed another company by name M\/s.\n<\/p>\n
    Aastha Agricultural Private Limited in Gauhati.                The 5th<\/p>\n
    accused has shifted to Kota with his family after winding<\/p>\n
    up the units in Daman. All these facts stated in the said<\/p>\n
    complaint will have to be read together.                   The said<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                  38<\/span><\/p>\n
    complaint has to be read as a whole (Indian Oil<\/p>\n
    Corporation’s case). Case of intention to cheat is prima<\/p>\n
    facie supported by these facts averred in the said<\/p>\n
    complaint.\n<\/p>\n
    26. Assuming that the facts stated in the said complaint<\/p>\n
    would as well reveal a commercial or money transaction,<\/p>\n
    that is hardly a reason for holding that the offence of<\/p>\n
    cheating would elude from it when ingredients of offence<\/p>\n
    are so clearly stated in the said complaint (Rajesh<\/p>\n
    Bajaj’s case).\n<\/p>\n
    27. We are informed that a civil suit is filed by the<\/p>\n
    complainant in the Delhi High Court. It is argued that the<\/p>\n
    said complaint must be quashed on this ground.                         In<\/p>\n
    Indian Oil Corporation’s case, the Supreme Court has<\/p>\n
    made   it clear     that   a commercial   transaction            or a<\/p>\n
    contractual dispute, apart from furnishing a cause of<\/p>\n
    action for seeking remedy in civil law may also involve a<\/p>\n
    criminal offence.     As the nature and scope of a civil<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                 39<\/span><\/p>\n
    proceeding is different from a criminal proceeding, the<\/p>\n
    mere fact that the complaint relates to a commercial<\/p>\n
    transaction or breach of contract, for which a civil remedy<\/p>\n
    is available or has been availed, is not by itself a ground<\/p>\n
    to quash the criminal proceedings.     The Supreme Court<\/p>\n
    has clarified that the test is whether the allegations in the<\/p>\n
    complaint disclose a criminal offence or not.            We have<\/p>\n
    already stated that the said complaint discloses a criminal<\/p>\n
    offence.   Pendency of a civil suit would not therefore<\/p>\n
    persuade us to quash the said complaint.              Besides, in<\/p>\n
    Trisun’s case, the Supreme Court has made it clear that<\/p>\n
    an alternative civil remedy is not an effective substitute<\/p>\n
    for a criminal prosecution where the disputed act is an<\/p>\n
    offence. This submission is, therefore, rejected.\n<\/p>\n
    28. We have examined the said complaint in the light of<\/p>\n
    judgments cited by both sides and come to the conclusion<\/p>\n
    that the said complaint cannot be quashed.                  We are<\/p>\n
    unable to accept Mr. Pradhan’s contention that judgments<\/p>\n
    cited by him cover the present case.                In Hridaya<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                 40<\/span><\/p>\n
    Ranjan’s case, on facts, the Supreme Court came to a<\/p>\n
    conclusion   that   the   case of presence        of dishonest<\/p>\n
    intention at the inception was not made out expressly or<\/p>\n
    indirectly in the complaint. Such is not the case here. We<\/p>\n
    have already dealt with this issue. Hence, this judgment<\/p>\n
    is not applicable to the present case.\n<\/p>\n
    29.<\/p>\n
          In G. Sagar Suri’s case, the facts were gross.\n<\/p>\n
    There was an attempt to rope in members of a family<\/p>\n
    which was severely commented upon by the Supreme<\/p>\n
    Court. There was an attempt to browbeat the accused to<\/p>\n
    recover loan amount.        The complaint was bereft of<\/p>\n
    particulars of dishonest intention. This judgment cannot<\/p>\n
    be applicable to the present case because the said<\/p>\n
    complaint contains the necessary particulars. Similarly, in<\/p>\n
    Alpic Finance’s case, the complaint was silent about<\/p>\n
    dishonest intention or fraud. On facts, the Supreme Court<\/p>\n
    noticed that there was an oblique motive of causing<\/p>\n
    harassment to the accused.        Facts of Alpic Finance’s<\/p>\n
    case are not comparable to the facts which are before us.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span><\/p>\n
     AJN
\n                                  41<\/span><\/p>\n
    Hence, the said judgment does not cover the present<\/p>\n
    case.\n<\/p>\n
    30. In Ajay Mitra’s case, the Supreme Court noticed<\/p>\n
    that the appellants\/accused were not in the picture when<\/p>\n
    the offence was committed and therefore the essential<\/p>\n
    ingredient of guilty intention was lacking.         In this case,<\/p>\n
    prima facie, the accused were on the scene right from the<\/p>\n
    beginning.    Hence, reliance placed on this judgment is<\/p>\n
    misplaced.      Similarly,   in Vir   Prakash’s         case, the<\/p>\n
    Supreme Court was of the view that the allegations in the<\/p>\n
    complaint did not disclose the ingredients of criminal<\/p>\n
    breach of trust.        There were vague allegations of<\/p>\n
    subsequent conduct. In this case, as already stated by us<\/p>\n
    the said complaint sets out all the particulars with<\/p>\n
    sufficient clarity.   It is, therefore, not possible for us to<\/p>\n
    apply the ratio of this judgment to the present case.\n<\/p>\n
    31. This takes us to the case of the petitioner that the<\/p>\n
    said complaint deserves to be quashed in view of the<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                    42<\/span><\/p>\n
    settlement between the parties. It is not possible for us to<\/p>\n
    accept the case of settlement because the complainant is<\/p>\n
    seriously disputing the alleged settlement. It is stated in<\/p>\n
    the petition that on 8\/5\/2006, since the dispute was<\/p>\n
    settled the 3rd accused filed an affidavit before the Chief<\/p>\n
    Judicial Magistrate, Daman, stating that he was aware<\/p>\n
    about his liability as per the agreement and he will<\/p>\n
    respect it.\n<\/p>\n
                   It is further stated that on 8\/5\/2006, the<\/p>\n
    representative of the complainant-company Mr. Pradeep<\/p>\n
    Gupta executed a pursis in the court saying that since the<\/p>\n
    accused had accepted the liability “the prosecution may<\/p>\n
    be disposed, even though civil liability is not affected”.\n<\/p>\n
    Copy of the affidavit and pursis are annexed to the<\/p>\n
    petition.   Prima facie, it is difficult to accept this story.\n<\/p>\n
    The complainant has filed affidavit denying this story. As<\/p>\n
    stated by him, the pursis is not signed by the petitioner.\n<\/p>\n
    It is stated to be signed by the 3rd accused. According to<\/p>\n
    the complainant, he had not given authority to Mr.<\/p>\n
    Pradeep     Gupta   to   file   a    pursis   on     behalf        of     the<\/p>\n
    complainant     company.        In    such    circumstances,              the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                43<\/span><\/p>\n
    compromise theory cannot be accepted.\n<\/p>\n
    32. In Nikhil Merchant’s case, the Supreme Court<\/p>\n
    observed that in case of a dispute which has overtones of<\/p>\n
    a civil dispute with certain criminal facets, if there is<\/p>\n
    compromise between the parties, the FIR can be quashed<\/p>\n
    because the continuance of the same would be a futile<\/p>\n
    exercise. There can be no dispute about this proposition<\/p>\n
    and if the parties had, in fact, settled their disputes, we<\/p>\n
    would have considered the prayer for quashing the said<\/p>\n
    complaint. But, since there is a serious dispute about the<\/p>\n
    petitioner’s contention that there was any compromise,<\/p>\n
    and it is alleged that the person who allegedly signed the<\/p>\n
    pursis had no authority to do so, in our writ jurisdiction,<\/p>\n
    we are unable to decide whether there was compromise<\/p>\n
    or not.   Consequently, prayer for quashing cannot be<\/p>\n
    entertained. Nikhil Merchant’s case does not help the<\/p>\n
    petitioner.\n<\/p>\n
    33. Before closing, we must refer to the judgment of the<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                44<\/span><\/p>\n
    Supreme Court in T. T. Vengama Naidu’s case.                      The<\/p>\n
    appellant therein had filed a private complaint against the<\/p>\n
    respondents which was sent for investigation under<\/p>\n
    Section 156(3) of the Code. Criminal case was registered<\/p>\n
    under Sections 464, 423, 420 read with Section 34 of the<\/p>\n
    IPC.   Investigation was in progress.   On a petition filed<\/p>\n
    under Section 482 of the Code, the High Court quashed<\/p>\n
    the complaint.\n<\/p>\n
                       The High Court considered whether<\/p>\n
    offence at all, was committed.    The Supreme Court set<\/p>\n
    aside the High Court’s order by observing that whether<\/p>\n
    offences were made out could not have been examined by<\/p>\n
    the court at that stage as the investigation was pending.\n<\/p>\n
    The court has only to see whether ingredients of the<\/p>\n
    offence are present or not. In this case, the investigation<\/p>\n
    is in progress. This is not a case where if the allegations<\/p>\n
    made in the said complaint are taken at their face value,<\/p>\n
    they do not prima facie disclose any offence. Ingredients<\/p>\n
    of cheating are very much present. It is not possible to<\/p>\n
    hold, at this stage, that the said complaint is filed with<\/p>\n
    mala fide intention to wreak vengeance.           Power under<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>
\n     AJN
\n                                 45<\/span><\/p>\n
    Section 482 cannot be used to stifle a legitimate<\/p>\n
    investigation   based   on   facts    prima    facie      indicating<\/p>\n
    commission of an offence such as those which are averred<\/p>\n
    in the said complaint. In the circumstances, bearing in<\/p>\n
    mind the principles laid down by the Supreme Court in a<\/p>\n
    long line of judgments that power of quashing a complaint<\/p>\n
    under Section 482 of the Code has to be used sparingly<\/p>\n
    and with great care and caution and in exceptional cases<\/p>\n
    where the complaint is bereft of the ingredients of the<\/p>\n
    offence alleged, we reject the petition.\n<\/p>\n
                                         [SMT. RANJANA DESAI, J.]<\/p>\n
                                            [R.G. KETKAR, J.]<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:37:53 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Delhi. vs Union Territory Of Daman & on 9 June, 2009 Bench: Ranjana Desai, Rajesh G. Ketkar AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.442 OF 2009 Prashant Jhunjhunwala s\/o. Late ) Shri Rajkumar Jhunjhunwala, ) R\/o. J-1\/76, Gupta Colony, Khirki ) Extension, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-177615","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDelhi. vs Union Territory Of Daman & on 9 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/delhi-vs-union-territory-of-daman-on-9-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Delhi. vs Union Territory Of Daman & on 9 June, 2009 - 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