Chetan Sonathbhai Mehta and 1 vs Bhupendrabhai Purohit and 1

Honourable Mr. Justice M.R. Shah

The present Criminal Miscellaneous Application u/s 482 of the Code of Criminal Procedure has been preferred by the applicants-original accused to quash and set aside the impugned order passed by the learned 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Bhavnagar dated 19/01/2011 below Exh. 29 in Criminal Case No. 8356/2006 by which the learned trial Court has partly allowed the said application discharging the applicants for the offence u/s 420 of the Indian Penal Code only and directing to frame the charge against the applicants-original accused for the offences punishable under Sections 406 and 114 of the Indian Penal Code.

Respondent no. 1-original complainant lodged FIR, being C.R. No. I 44/2006 with ''C'' Division Bhavnagar Police Station, against the applicants-original accused for the offences punishable under Sections 406, 420 and 114 of Indian Penal Code alleging interalia that respondent no. 1-original complainant entered into transaction to sell anti-tobaco drops, shampoo, cream etc and took a total sum of Rs. 6,05,006/-by cheque as well as cash and though the said amount was taken the applicants-original accused did not deliver the goods and, therefore, it was alleged that the applicants have committed the offence under Sections 406, 420 and 114 of the Indian Penal Code. Being aggrieved and dissatisfied with the same, the applicants preferred Criminal Miscellaneous Application No. 8026/2008 before this Court for quashing and setting aside the FIR, however, in the meantime, the applicants came to be chargesheeted for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code and, therefore, the applicants withdrew the said application with a view to avail the remedy under the Code of Criminal Procedure. Accordingly, the aforesaid Criminal Miscellaneous Application came to be permitted to be withdrawn with the above liberty. It appears that thereafter the applicants submitted the application, Exh. 29 before the learned Magistrate in the aforesaid Criminal Case Bi, 8356/1006 for discharge and by impugned order the learned trial Court has partly allowed the said application discharging the applicants for the offence u/s 420 of the Indian Penal Code only and directed the applicants to frame the charge against the applicants for the offence punishable under Sections 406 and 114 of the Indian Penal Code. Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh. 29 the applicants have preferred the present application u/s 482 of the Code of Criminal Procedure.

Shri S.P. Kotia, learned advocate appearing on behalf of the applicants has vehemently submitted that as such the applicants have not committed any offence as alleged under Sections 406 and 114 of the Indian Penal Code. It is submitted that as such the goods were supplied to respondent no. 1-original complainant, which was received by him, however, subsequently, there was some dispute with respect to payment and when the applicants served legal notice upon respondent no. 1-original complainant to pay the remaining amount towards sale tax etc. respondent no. 1-original complainant disputed the same and thereafter the impugned FIR came to be filed. It is submitted that when the goods were already delivered to respondent no. 1-original complainant there is no question of misappropriation and/or committing any offence of breach of trust as alleged. It is submitted that therefore the learned Magistrate ought to have discharged the applicants for the offence punishable under Sections 406, 420 and 114 of the Indian Penal Code and, therefore, it is requested to allow the present application.

The present application is opposed by Shri Bhavin Raiyani, learned advocate appearing on behalf of respondent no. 1-original complainant. It is submitted that the entire goods were not supplied and the delivery of the entire goods were not given and only mouth fresheners were supplied and, therefore, by not delivering the remaining goods, though the amount for the same was received by the applicants, it amounts to criminal breach u/s 405 of the Indian Penal Code and, therefore, the learned Magistrate has rightly directed to frame the charge against the applicants for the offences punishable u/s 406 and 114 of the Indian Penal Code and, therefore, it is requested to dismiss the present application.

Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State has requested to pass an appropriate order considering the facts and circumstances of the case.

Heard the learned advocates appearing on behalf of the respective parties at length. From the documents on record it appears that as such respondent no. 1-original complainant had received the goods supplied by the applicants, however, it appears that there was some dispute with respect to further payment and/or the payment alleged to have been due and payable by respondent no. 1-original complainant for which notice was served by the applicants upon respondent no. 1-original complainant, which was replied by respondent no. 1-original complainant by submitting that nothing is due and payable to the applicants. Considering the aforesaid facts and circumstances of the case, more particularly, when the goods were delivered to respondent no. 1-original complainant, there is no question of committing any offence by he applicants for the offence under Sections 405 and 406 of the Indian Penal Code as alleged. There was no question of thereafter committing criminal breach of trust by the applicants. Under the circumstances, the learned Magistrate has committed an error in not discharging the applicants for the offence punishable under Sections 406 and 114 of the Indian Penal Code and has materially erred in framing the charge for the offence punishable under Sections 406 and 114 of the Indian Penal Code.

In view of the above and for the reasons stated hereinabove, the present application succeeds. The impugned order passed by the learned 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Bhavnagar dated 19/01/2011 below Exh. 29 in Criminal Case No. 8356/2006 is hereby quashed and set aside in so far as directing to frame the charge against the applicants for the offence under Sections 406 and 114 of the Indian Penal Code is concerned and the application, Exh. 29 for discharge of the applicants for the offence punishable u/s 420, 406 and 114 of the Indian Penal Code is concerned, the same is hereby allowed in toto. Rule is made absolute to the aforesaid extent. No cost.

Direct service is permitted.