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Judgment
Ram Nandan Prasad, J.—Both the above applications arise out of complaint case No. 24/87 pending before the Judicial Magistrate, Ranchi. The complaint has been filed by the opposite party No. 2 Vinay Kumar Jalan and the petitioners of both the applications figure as accused persons in this complaint case. The prayer in both the applications is for quashing the order dated 7.5.87 whereby cognizance of offence u/s 406/34 I.P.C. has been taken by the Magistrate against the accused persons (petitioners) and also for quashing the entire proceedings of the said complaint case. Both these applications have been heard together and this order will govern both of them. The petitioner No. 1 E. Merck (India) Ltd. in Cr. Misc. No. 1251/87(R) is a drugs manufacturing company with its headquarters at Dr. Annie Beasant Road, Bombay, and petitioner Nos. 2, 3 and 4 are Director, Secretary and Manager of this company. They figure as accused Nos. 1, 4, 5 and 10 in the petition of complaint. The petitioners of Cr. Misc. No. 1270/87(R) are the employees of the aforesaid company posted in its offices at Calcutta, Patna and Ranchi for dealing with the business transactions of the company. They figure as accused Nos. 2, 6, 7, 8 and 9 in the petition of complaint. One Sri C.H. Bhaba, Chairman of the company has been shown as accused No. 3 in the petition of complaint; he is said to have died even before filing of the complaint petition.
The opposite party Vinay Kumar Jalan is the proprietor of the firm Drugs India with its headquarters at Ranchi and claims to transact whole-sale business of Pharmaceutical products. He is the complainant of the case. The petition of complaint filed by him has been made annexure 1 in both these applications.
The admitted position is that on the basis of an application dated 11.4.85 made by the complainant to the company for being appointed as preferred dealer, he was informed by the company''s letter dated 17th May 1985 (Annexure-1 to the petition of complaint) that the company had decided to appoint him as their preferred dealer at Ranchi with immediate effect and it also mentions that the letter of appointment will be sent in due course. The appointment letter dated 10th June 1985 sent by the company to the complainant firm has been annexed as annexure-2 to the petition of complaint and it also mentions the terms and conditions under which the preferred dealer, ship was to operate.
The undisputed position is that according to the terms and conditions which were sent to the complainant with the letter of appointment (annexure-2 of the complaint petition) the preferred dealer, namely the complainant, was to be allowed only a discount of 8 % or 10%, depending upon category 3 and 4 of the products respectively, on the retailers price exclusive of excise duty, and further condition laid down is that the complainant it required to sell the goods at a price not higher than the retailers price inclusive of excise duty. The complainant''s case, however, is based on the allegation that when the officers of the company had come to the complainant in connection with the dealership on 11.4.1985, they had after negotiation agreed that the complainant shall get from the company commission equal to 10% of the value of all the consignments sold by him to the dealers and that this commission would be over and above the discount mentioned in the terms and conditions of the dealership agreement.
In the petition of complaint. It has been stated that the complainant received several consignments on full payment of the value thereof through bank and thereafter sold the same to the dealers (retailers). It has been stated that from May 1985 up to Jan, 1986, the complainant received 65 consignments out of which payments for 59 consignments on the invoice value were made through the Bank, but for the value of last six consignments priced at Rs. 2,65,463=20 P payment was not made to the company by the complainant as, according to him, by the time the last consignment had been received by him a sum of Rs. 4,56,665=37 P had become payable to him by the company on account of the extra 10% commission and also on account of claims arising from breakages, shortages and value of expired goods and that the company did not make this payment to him and that as per account the company owes to the complainant the sum of Rs. 1,91,202=17 P after adjustment. It has further been stated in the complaint petition that the complainant went to Calcutta and met the officers of the company who assured him about the payments to be made to him after adjustment but this was not done. The complaint petition further alleges that the above facts make it clear that the company officers had fraudulently and dishonestly induced the complainant to accept the preferred dealership and promote the sale of the company''s products by falsely giving our that he would get extra commission and that accused persons have dishonestly with held payment of this extra commission as well as sums due to the complainant for breakages, shortages and value of expired goods. The allegation is that the accused persons had thus intended to cheat complainant from the very beginning. It is stated that inspite of letters and remainders there has been no response from the accused persons in regard to this payment and that all the aforesaid amounts which fell due for payment by the company to the complainant shall be deemed to have been entrusted to the company and shall be deemed to have been dishonestly used by the company in violation of the terms of the agreement and that these acts amount to criminal breach of trust and cheating. It is further stated in the petition of complaint that the complainant had been waiting for payment of Rs. 1,91,202= 17 P after final accounting but inspite of assurance the accused persons did not make the payment and this waiting caused delay in filing the petition of complaint. It is also stated that the complainant had gone to the local P.S. but the police officer showed unwillingness to institute the case and hence he was filing the complaint in court.
The petitioners in both the applications have denied the complainants allegations that there was any agreement whatsoever for payment of an extra commission of 10% over and above the discount to be given to him as laid down clearly and specifically in the terms and conditions of the preferred dealership agreement. In this connection it has been urged on behalf of the petitioners that infact the complainant himself had committed a fraudulent and dishonest act by receiving the last six consignments without making any payment through the Bank by bringing the carrier of the consignments in collusion. In this context it has been pointed out that for such fraudulent act of the complainant in taking delivery of six consignments worth Rs. 2,65,463=17 P, the company filed a complaint case on 8.9.1986 against the complainant Vinay Kumar Jalan at Patna and the latter filed Cr. Misc. No. 1064/86 in the Patna High Court for quashing the said criminal proceeding against him. It was urged on behalf of the petitioners that when the complainant Vinay Kumar Jalan in course of hearing of the criminal Misc. case in the Patna High Court sensed and became aware that his application was likely to be dismissed he as a counter blast, filed the present case against the petitioners on 24.4.87 and that Vinay Kumar Jalan''s applications (Cr. Misc. No. 1064/86) was dismissed on 30.4.87. The contention of the petitioners is that these facts indicate that the complaint filed against them is malafide and only with a view to provide a cover to the complainant Vinay Kumar Jalan for his own alleged illegal acts.
The contention of the petitioners is that all the terms and conditions of the preferred dealership were put in writing and given to the complainant along with the appointment letter and there could be no question whatsoever of there being any oral agreement about the payment of extra commission of 10%. In this connection it has been argued that commission is payable to an agent and net in the case of preferred dealerships and that according to the trade practice preferred dealer is merely a purchaser of the products of the company and as such is only allowed discount which has been done by the company in the present case. As regards the alleged claims for breakages, shortages and value of expired goods, the contention of the petitioners is that there are specific clauses in the terms and Conditions of the dealerships on this point and that the complainant has not put forward any claim for such items in terms of the clauses of the agreement. It has further been contended on behalf of the petitioners that even if it be supposed for a moment that there was an oral agreement to pay 10% commission, over and above the stipulated discount, the matter is purely of accounting in business dealings and that no criminal liability can arise for the alleged non-payment of the so-called 10% extra commission. The argument is that since according to the complaint petition itself, no accounting has taken place between the parties in respect of the claims and counter claims, the alleged amount of Rs. 1,91,202=17 P can at the most be regarded as the claim of the complainant Vinay Kumar Jalan and a claim can not be regarded as property in respect of which there could have been any entrustment. It has been contended that if the complainant has any claim, the proper course for him is to get his claim adjudicated before a Civil Court and get a decree for the same and until a decree is obtained by him, his allegations merely amount to claims in business dealings which cannot give rise to any entrustment by the complainant to the company or to its officers. It has further been urged on behalf of the petitioners that the order of cognizance for the offence u/s 406/34 I.P.C. is unsustainable in law and continuation of the criminal proceedings against them would amount to an abuse of the processes of the court. The learned magistrate has not passed any order of cognizance in respect of any offence of cheating. It has been contended on behalf of the petitioners that there could not be any question of cheating at all because the complaint petition itself does not indicate any basis for saying that at the time of negotiation itself the accused persons bad any fraudulent or dishonest intention to induce the complainant to accept the preferred dealerships. In this context it has been stated that if there was such an agreement there was no reason why the same would not be included in terms and conditions of the preferred dealership (annexure-2 to the complaint petition) and further that the complainant never raised any objection about non-inclusion of the alleged assurance of 10% commission in the terms and conditions of the dealership. The contention is that the allegation is totally devoid of substance.
Before proceeding further, I may mention that after the filing of the complaint, the learned Magistrate took the statement on S.A. of the complaint and in course of inquiry u/s 202 Cr.P.C, it also examined three witnesses on behalf of the complainant P.Ws. 1 and 2 claim to be the sales-man in the complaint''s shop and P.W.3 claims to be the manager of the said shop. Their statements are merely on the same lines as the allegations in the petition of complaint and their evidence does not disclose any specific fact beyond what has been stated in the complaint petition.
The definition of criminal breach of trust in section 405 of the I.P.C. envisages the following ingredients:--
(i) there must be some property which is entrusted.
(ii) there must be entrustment by one persons to another.
(iii) there must be dishonest misappropriation or conversion to his own use by the alleged offender or use or disposal of the property in violation of any law or any legal contract.
The contention on behalf of the complainant opp. party No. 2 is that he had received the consignments on full payment of the invoice value and this payment included 10% extra commission which the complainant was to get from the company and the latter must be deemed to have been entrusted with amount of 10% commission payable to the complainant. The argument is that since this amount has been withheld by the company and its officers, it amounts to criminal breach of trust.
It has been urged on behalf of the petitioners that the available materials on record clearly show that there was no agreement to pay 10% extra commission over and above the discount mentioned in the terms and conditions of the dealership. It has been submitted that since the terms and conditions had been clearly specified and put in writing, how can it be believed by any sensible person that there was oral agreement beyond what has been put in writing. The further submission is that even if there was any such oral agreement on 11.4.85 and if the said agreement was not included in the written terms and conditions the complainant could very well have drawn attention of the company and its officers to the alleged omission, but this was never done. It has, therefore, been contended that the allegation of the complainant about there being an oral agreement to pay 10% commission is absurd and unbelievable.
It has been contended on behalf of the petitioners that even if it be supposed that there was an assurance to pay 10% commission, and the same has not been paid, it merely amounts to a claim of the complainant to be determined on final accounting between the parties. It is pointed out that according to the complaint case itself (vide para-7 of the complaint petition) the alleged commission was to be equal to 10% of the value of all the consignments sold by him to the dealers (retailers). It has been pointed out that according to the complainant''s case itself all the goods sent under the different consignments have not been sold by the complainant to the dealers because he himself alleges breakages, shortages and expiry of goods. Under such circumstances, the matter of the alleged 10% commission is still to be determined by the accounting. The complainant has not stated any where in the petition of complaint as to how much of the goods received under the various consignments have actually been sold by him to the dealers and how much remained unsold due to breakages, shortages and expiry of the goods. The argument is that the alleged claim of the complainant is still to be determined. In reply it was argued on behalf of the opposite party No. 2 that there details are matters of evidence and hence it was not necessary to state them in the petition of complaint. It has to be borne in mind that the petition of complaint must prima facie disclose the facts which would indicate that actually any amount bad been entrusted and after being so entrusted had been misappropriated. In my opinion, these ingredients are lacking in the present case.
The complainant''s claim of Rs. 1,91,202=17 P is based on his own accounts but the complaint petition itself goes to show that there has not been accounting between the parties in respect of the claims and counter claims. The petitioners do not accept the claim of the complainant regarding 10% commission, on the other hand the complainant has accepted in the petition of complaint that he had taken delivery of six consignments valued at Rs. 2,65,463=20 P without making the payment for the same. Thus, the facts alleged in the complaint petition merely go to show that there is claim and counter claim of the parties against each other arising out of business transactions between them and what exactly is due to one party against the other is yet to be determined by the full and proper accounting. In this context it cannot be said that the alleged claim of the complainant can be regarded as property. Again, the mere nonpayment of alleged 10% extra commission would at the most amount to a breach of contract and it is not correct to say that the commission amount bad been entrusted by him to the company or its officers. Further, the allegation of the complainant is merely of non-payment and he has not indicated that the company has misappropriated or converted to its own the use alleged amount which the complainant claims towards the commission. In my opinion, therefore, the necessary ingredients of an offence of criminal breach of trust are lacking in the present case, and the facts as stated in the petition of complaint as well as in the evidence of witnesses recorded u/s 202 Cr.P.C. do not on the face value make out any offence even if they stand unrebutted. At the most, they would give rise to a civil liability arising from alleged breach of contract.
It was argued on behalf of the complainant that the case has given rise to disputed facts which can be determined in course of the trial on the basis of evidence and hence this court should not interfere with the impugned order of cognizance. As I have already indicated above, even if we accept the allegations made in the petition of complaint in toto the said facts do not make out the ingredients of the offence of criminal breach of trust. On the other hand, there appears to be force in the contention put forward on behalf of the petitioners that no sensible person could reasonably believe that when the terms and conditions are clearly and specifically put in writing there would be an oral agreement beyond what has been put in writing and more so when the complainant never drew the attention of the company or its officers about the alleged omission.
It was also argued on behalf of the complainant opposite party No. 2 that although the learned magistrate has not taken cognizance of offence of cheating u/s 420 I.P.C. the facts alleged in the petition of complaint make out such an offence and therefore, these should be allowed to proceed. The contention is that it was only on the basis of the assurance given to him about payment of extra 10% commission that the complainant agreed to become a preferred dealer of the company and had it not been so he would not have accepted dealership. The said assurance is said to have been held out by the officers of the company who are petitioners in criminal Misc. 1270/87(R). In reply, it has been argued on behalf of the petitioners that even if it be accepted for a moment that the officers had promised 10% extra commission there is nothing to show that such a promise was held out by them fraudulently or dishonestly. The contention is that the company was at liberty to accept or not to accept the alleged extra 10% commission and as the terms and conditions of dealerships show the 10% extra commission was not accepted by the company and having become aware of it the complainant continued to transact business with the company and its officers. It has been, therefore, contended that there was no deception of the complainant in this regard. I think there is substance in this contention. It has not been alleged any where in the petition that what had been negotiated between the complainant and the officers of the company was to be put only partly in writing and the matter of 10% commission was agreed to be on mere verbal basis. As such even if it be assumed that the officers had on 11.5.85 given assurance that 10% commission may be paid, since the same was not put in writing in the terms and conditions, it cannot be said that the complainant had been deceived in any manner. Again, as already stated above it is still to be determined by full and proper accounting and adjustment as to whether any sum would be due to the complainant against the petitioners and so it cannot be said that any loss or harm has been caused or is likely to be caused to the complainant due to alleged nonpayment of the 10% commission so far. I, therefore, accept the contention of the petitioners that no offence of cheating also appears to be made out on the basis of the allegations in the petition of complaint.
The petitioners have relied on the case reported in K.C. Thomas Vs. Avirah Varghese, in support of their contention, that even if there be entrustment of property, no offence of criminal breach of trust would be made out unless and until there is anything to show that the said property had been illegally retained or misappropriated. In the present case the complainant has merely put forward a claim and it is still to be determined how far that claim is valid for all the different items and there is nothing to show that the amount which may ultimately become payable has been misappropriated or illegally retained. As such no criminal breach of trust can arise in the present case.
In the case reported in Om Prakash Singhania and Babulal Singhania Vs. Nauratan Mal Dudharia, it has been held that where claims are put forward in respect of business transactions between the parties and if there is nonpayment, it would be a case of mere breach of contract for which civil remedy by way of suit can be availed of. In the matter of trade differences criminal proceedings for an offence of criminal breach of trust would not be justified.
It was urged on behalf of the complainant opp. party-2 that since the magistrate has taken cognizance and also examined witnesses in the inquiry u/s 202 Cr.P.C. it would be better and advisable to let the case proceed and the petitioners can put forward their pleas before the magistrate and pray for a discharge. The argument is that interference by the H.C. in exercise of its powers u/s 482 Cr.P.C. would not be justified. The petitioners have urged that while passing the impugned order for summoning the accused persons, the magistrate has not fully and judiciously applied his mind as to whether any offence is made out on the basis of allegations in the petition of complaint and if there has been failure to do so, the H.C. would be justified in quashing the proceedings. In support the petitioners have relied on the case reported in 1982 B.B.C.J. 468 (A. Sirkar vs. State of Bihar & ors.) In this case also the learned magistrate on the basis of the petition of complaint had ordered for issue of processes against the accused persons. His lordship after examining in detail the facts and circumstances of the case and also the law laid down in this regard in various rulings, held that if prima facie the ingredients of the offence are not made out interference by the H.C. u/s 482 Cr.P.C. would be valid and justified. In this context, I may refer to the decision of S.C. in State of Karnataka Vs. L. Muniswamy and Others, . In paragraph-7 of the Judgment their Lordships have observed as follows:--
In the exercise of the wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of Justice require that the proceeding ought to be quashed. The saving of the High Courts inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution. In a criminal, case the veiled object behind a lame prosecution, the very nature of the materials on which only the structure of the prosecution rests and the like would justify the H.C. in quashing the proceeding in the interest of the Justice.
It is also the settled legal position that if the facts alleged in the complaint petition and materials on record do not make out a case in which there is likelihood of conviction then continuation of such proceeding would not serve the ends of justice and would amount to mere harassment and in such circumstances interference u/s 482 Cr.P.C. would be justified. I have already indicated above that the allegations in the petition of complaint and even in the statements of witnesses examined u/s 202 Cr.P.C., do not make out the ingredients of an offence of criminal breach of trust of cheating and on the basis of the alleged facts there appears to be no likelihood of the case ending in conviction. In such a situation, the continuation of the proceedings against the petitioners would not serve the ends of justice and could merely cause harassment to them. The facts alleged in the complaint do not disclose sufficient ground for proceeding against the petitioners and as such the Impugned order for issue of process u/s 204 Cr.P.C. against the petitioners cannot be sustained. In the case already cited above ( State of Karnataka Vs. L. Muniswamy and Others, it has been laid down that the H.C. is entitled to go into the reasons given by the subordinate court for passing the order in question (in that case the Sessions Judge had passed an order at the stage of framing of charge under sections 227 and 228 Cr.P.C.). In my opinion, the contention of the complainant that it was for the magistrate alone to be satisfied whether sufficient grounds are made out or not and that the H.C. should not go into this question cannot be accepted. For the reason stated above, I find that the facts and circumstances of the case show that the impugned order is unsustainable in law and the continuation of criminal proceedings against the petitioners of both the applications amounts to an abuse of the process of the court and would merely cause harassment and would not serve the ends of justice. Accordingly, I hereby set aside and quash the impugned order dated 7.5.87 and also quash the entire criminal proceedings against the petitioners. Thus both the applications stand allowed.