Padam Kant Sharma vs S.C.Rohtagi

S.S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure relates to quashment of the complaint dated 6.10.1988 under Section 409 of the Indian Penal Code filed by the respondent against the petitioner as well as subsequent proceedings thereunder, pending before the Additional Chief Judicial Magistrate, Gurgaon.

In brief, facts relevant for the disposal of this petition, are that the petitioner is carrying on business of distribution of dissolved acetylene, and, oxygen gases as a dealer of Anand Gases and Industries Ltd. The respondent is the Secretary of the respondent company, whereas, the petitioner is its dealer at Ghaziabad. The agreement, and, indemnity bond executed by the petition for this purpose were renewed from time to time, and, an amount of Rs. 1,06,000/ was deposited by way of security by the petitioner with the respondentCompany on 10.9.1987 against the value of cylinders which, were supplied by the respondentCompany to the petitioner, as its dealer. According to the averments in the complaint filed against the present petitioner, 341 Cylinders of the respondentCompany were in possession of the petitioner on 21.9.1988 as the its dealer. The respondentCompany stopped the supply of gases to the petitioner after 21.9.1988. The said contract was terminated unilaterally and no intimation was sent to the petitioner in this regard. According to the petitioner on 21.9.1988 itself, the respondentCompany had collected 20 empty cylinders of dissolved acetylene and 82 oxygen empty cylinders, besides 24 private cylinders had been kept in circulation by the petitioner himself. These cylinders were to be taken by the respondentCompany 102 cylinders of the petitioner were received by the respondentCompany at Ghaziabad. Thereafter the respondentCompany filed complaint Annexure P.1 on 6.10.1988 against the present petitioner. The petitioner was summoned as an accused in the said case on 2.1.1989. According to the petitioner, the impugned complaint amounts to an abuse of the process of the Courts, because the complaint does not disclose commission of any offence. According to the allegations in the complaint, 341 cylinders had not been supplied by the petitioner to the respondentCompany, despite repeated requests. The petitioner is said to have committed criminal breach of trust in respect of aforesaid 341 cylinders.

Counsel for the parties were heard. Preliminary objection was raised on behalf of the respondent that the petitioner has deliberately suppressed material facts from this Court. At the time of granting of bail counsel for the petitioner made statement that he would return 341 cylinders within a fortnight. The statement of the petitioner''s counsel was separately recorded in this regard, and on the said undertaking the petitioners was granted interim bail by the Sessions Judge, vide, his order dated 20.1.1989 till 2.2.1989. Suppressing this fact, the petitioner filed the present petition in this Court on 30.1.1989 and obtained stay with regard to the proceedings before the trial Court on 31.1.1989.

Learned counsel for the petitioner has not been able to give any satisfactory explanation on this important aspect. The only explanation put forth on his behalf is that the counsel representing the petitioner may not have thought it proper to mention this fact in the petition. This is a lame excuse. It is quite patent that the aforesaid fact was deliberately concealed, and thereby the petitioner succeeded in obtaining the stay order in his favour without returning 341 cylinders. In these circumstances it would not be desirable to exercise inherent powers of this Court in favour of the petitioner, who has not come to the Court with clean hands.

Faced with this situation, it was submitted that the dispute concerning return of cylinders is primarily of civil nature, and criminal proceedings pending in the trial Court may be stayed. Reliance in this respect has been placed on Single Bench authority of this Court in Phaggu Ram and others v. The State of Punjab, 1975 P.L.R. 57. The aforecited authority in Phaggu Ram''s case (supra) is neither applicable to the facts of the present case, nor the same can be relied upon in view of the authoritative pronouncement of their Lordships of the Court in case Jaswantrai Manilal Akhaney v. The State of Bombay, AIR 1956 Supreme Court 575 wherein it was held as under :

"The same set of the facts may give rise both to a civil liability and a criminal prosecution but if there is no means rea, or if the other essential ingredients of an offence are lacking the same facts may not sustain a criminal prosecution, though a civil action may lie."

Thus, it would be necessary to determine whether or, not mans rea, or, criminal intent on the part of the petitioner has been made out or not. There are specific allegations in the complaint filed the by respondent that 341 cylinders had been supplied to the petitioner by the present respondent and the latter had failed to return the same to the former in spite of repeated requests. Admittedly the petitioner is the dealer of the respondentcompany for the sale of gas cylinders to his customers. After use those customers return the said gas cylinders to the petitioner, who is duty bound to return the same to the respondentcompany. Thus the jural relationship which existed between the parties, in view of the terms of agreement and substance of the transactions was that of principal and agent, and not merely that of buyer and a seller as held in State of Madras (now Andhra Pradesh) v. Jayalakshmi Rice Mill Contractors Co., AIR 1959 Andhra Pradesh 352. The said judgment was subsequently relied in Gunupati Alluraiah v. State of Andhra Pradesh, AIR 1963 Andhra Pradesh 394.

Undertaking given by the petitioner''s counsel at the time when the Sessions Court granted interim bail to the petitioner prima facie supports the case of the respondent that on 21.9.1988, 341 gas cylinders had yet to be delivered by the petitioner to the respondentCompany and, on that basis interim bail was granted. His subsequent conduct in not returning those cylinders to the respondents on one pretext or the other, coupled with the allegations in respect of entrustment of the cylinders to the petitioner by the respondent, makes out a prima facie, case against the petitioner that he wanted to dishonestly misappropriate, or, convert to his own use those cylinders or dishonesty used, or disposed of those cylinders in violation, and, utter disregard of the legal contract entered into between the parties. On this ground also it would not be desirable to quash the criminal proceedings pending against the petitioner, even though the same may also constitute civil liability, I find support in my view from the decision in Jaswantrai Manilal Akhaney''s case (supra) as well as J.P. Sharma v. Vinod Kumar Jain and others, 1986(2) Recent Criminal Reports 75 : 1986 SCC (Crl.) 2016 .

For the foregoing reasons I do not find any merit in this petition and the same is hereby dismissed.