Padam Kant Sharma vs Sh.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 6101988 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 to the respondent company, whereas the petitioner is its dealer at Ghaziabad. The agreement and indemnity band executed by the petitioner 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 1091987 against the value of cylinders which, were supplied by the respondent company to the petitioner, as its dealer. According to the averments in the complaint filed against the present petitioner 341 cylinders of the respondent. company were in possession of the petitioner on 2191988 as its dealer. The respondentcompany stopped the supply of gases to the petitioner after 2191988, 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 respondent company had collected 20 empty, cylinders of dissolved acetylene and 82 oxygen empty cylinders, besides 124 private cylinders bad 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 respondent company at Ghaziabad.

Thereafter the respondentcompany filed complaint Annexure P. 1 on 6101988 against the present petitioner. The petitioner was summoned as an accused in the said case on 211989. According to the petitioner, the impugned complaint amounts to an abuse of the process of the Court, because the complaint does not disclose commission of any offence. According to the alienations in the complaint, 341 cylinders bad 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 petitioner was granted interim bail by the Sessions Judge vide his order dated 2011989 till 221989. Suppressing this fact, the petitioner filed the present petition in this Court on 3011989 and obtained stay with regard to the proceedings before the trial Court on 3111989.

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 clearable 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 afore cited 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 Supreme 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 facts may give rise both to a civil liability and a criminal prosecution but if there is no mens 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 mens rea, or criminal intent on the part, of the petitioner has been made out or not. There are specific allegations in the complaint filed by the 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 respondent company 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 Aluraiah 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 supported the case of the respondent that on 2191989, 341 gas cylinders had yet to be delivered by the petitioner to the respondent company 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 dishonestly 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 (Cri.) 216.

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