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Judgment
G.S. Chahal, J.
By means of this criminal miscellaneous under section 482, Cr. PC Miss Bina Pratapsinh Vissanji, Hemant Pratapsinh Vissanji, Arati Hemant Pratapsinh and Motilal Krishnagopal Rathi, petitioners seek the quashing of the complaint brought against them by Sant Lal Rajinder Kumar, a registered partnership firm, New Anaj Mandi, Ambala City.
The complaint by M/s Sant Lal Rajinder Kumar (briefly `the firm'') has been filed for offences under sections 420/129, IPC. The facts, as gathered from the complaint, Annexure P 1 and criminal application No. 123 of 1991, moved in the Court of Session for Greater Bombay, Appellate Side, Annexure P3, may be briefly stated.
On 1691989 Vasant Rai, along with a representative of the firm Wallace Flour Mills Co. Ltd., Bombay (hereinafter `the Company''), (accused1 is the Manager and accused 2 and 3 are the directors), visited the shop of the firm which is running the business of commission agency and trading in foodgrains for purchase of some wagons of wheat. Vasant Rai and the representative of the Company represented that the Company was a reputed flour mills company of India at Bombay and crushes about 6,000 bags wheat daily and their transactions were always genuine. Their financial position was also good. They wanted several foodgrain bags through wagons and represented that immediately on despatch of the goods, the documents would be retired from the Bank and delivery would be taken. The Firm believing the representation to be correct, agreed to sell 5 wagons of wheat at Rs. 272/ per quintal Four wagons of wheat were despatched during the period 18.989 to 25989. The documents relating to bills No. 236 and 242 were sent to Oriental Bank of Commerce, Bhat Bazar. Mandvi, Bombay, while that of 243 were sent to Punjab National Bank, Bhat Bazar, Kandivli, Bombay. The original bills were sent to the Company. The wagons, carrying loaded wheat, reached Bombay in the second week of October 1989, while the relevant documents reached the respective banks within a week. On 21289 the Firm received the intimation that the weagons were lying undelivered and if delivery was not taken within 15 days, it would be transferred to the lost property office for public auction. Having received this information from the goods office, Ambala City, the Firm contacted the Company on telephone and made enquires for nonretirement of the documents. However, no satisfactory reply was furnished by the Company. The Firm sent its representative, Rajinder Kumar to Bombay to ascertain the exact position. On reaching Bombay, it was learnt that the Company was in heavy financial difficulties and therefore was not able to retire the documents. The Company had also written letter dated 121289, addressed to Oriental Bank of Commerce and Punjab National Bank, Bombay and also to Superintendent, CCB, Bombay about its financial difficulties. On the assurance given by the Company, Rajinder Kumar, representative of the Firm, gave indemnity bonds to the Company at Bombay so that is might take delivery of the goods. Letter dated 91289 was despatched by the Company, intimating the Firm that delivery of goods had been taken on the basis of indemnity bonds. Subsequently, however, the Firm learnt that the delivery had not been taken by the Company. Having received intimation from the Rly. Admn., that if the goods were not taken delivery of within 7 days, the same would be put to public auction the Firm''s representative visited Bombay and took delivery of the wagons and sold the goods in Bombay market, thereby suffering a loss of about Rs. 1,50,000/. The intention of the Company from the very beginning was dishonest. It had made a false representation about accepting delivery and retirement of documents and about its sound financial position. It had also sent false letter undertaking the delivery and had cheated the Firm by causing a loss of about Rs. 1,50,000/.
As per averments made in the complaint, the Company had entered into an agreement to purchase wheat which the Firm had agreed to supply. However, the Company failed to retire the documents and take delivery of the goods. Then Rajinder Kumar, representative of the Firm visited Bombay, the Company showed its willingness to take delivery of the goods on the basis of indemnity bonds and the indemnity bonds were, in fact, furnished by Rajinder Kumar. In spite of the same, delivery of the wheat in question was not taken by the Company.
A bare reading of section 420, IPC would show that for making out such an offence, there is not only to be a false representation, but also delivery of property. Mere false representation which the accusedperson may make, at one stage. will not make out a case of cheating. It has come in the complaint itself that the Firm had found that the Company was in financial difficulty. At the time the Company had agreed to buy wheat, it might have considered that it would be in a position to retire the documents through Bank and take delivery of the goods. However, on account of financial constraints, this could not be done. When Rajinder Kumar, representative of the Firm, contacted the Company at Bombay. It was agreed that delivery of the goods might be taken on the basis of indemnity bonds. In spite of the indemnity bonds executed by Rajinder Kumar, the Company did not take delivery of the goods in question for the reasons that it apprehended that it might not be able to keep its promise to make payment of price of the goods. Nontaking of delivery of wheat itself, speaks of an honest conduct of the Company, rather than the Company having a criminal intention of cheating the Firm. The Firm suffered a loss of about Rs. 1,50,000/ as it had to sell the goods in the open market and also suffered on account of demurrage paid to the Rly. Authorities. All these facts, however, do not make out a criminal charge against the Company. The entire dispute is, thus, of a civil nature in M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillal, AIR 1938 Madras 129 it was observed :
"The High Court has inherent jurisdiction under Section 561A, Criminal PC, to pass any order necessary to prevent abuse of the process of any Court. In the world of business, things are often done which are betrayals of confidence and deceptions which arouse moral indignation, but are nevertheless civil wrong which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. Not every immoral act is criminal and it is an abuse of the process of a Court to attempt to create a new crime in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises. And therefore the High Court, to prevent specious and spiteful criminal prosecutions for actions which, though strictly dishonorable, yet do not amount to crimes, has jurisdiction to interfere."
I subscribe to the same view and hold that the continuation of the prosecution on the basis of the impugned complaint is an abuse of process of the Court. I accept the criminal miscellaneous and quash the complaint Annexure P1 and all the consequent proceeding.
JUDGMENT accordingly.