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Judgment
G.S. Chahal, J.
Ramesh Kumar, proprietor firm Lakhat Rai Nand Lal, Muzaffar Nagar (UP), petitioner1 and Shiv Charan, Munim of the said firm, petitioner2 have moved this criminal miscellaneous under section 482 Cr.P.C. for quashing of the criminal complaint dated 18.3.88, Annexure P6 and the summoning orders dated 29.5.89 passed by the Sub Divisional Judicial Magistrate, Bahadurgarh. Annexure P9; orders dated 28.5.90 passed by the Addl. Sessions Judge, Rohtak, Annexure P 12 and all the consequent proceedings taken by the Sub Divisional Judicial Magistrate in the complaint. The complaint which is sought to be quashed has been brought by respondent 1.
According to the allegations made in the complaint, Annexure P6, daughter of Shiv Charan petitioner2 is married to the son of Duli Chand who is real uncle of the complainant Madan Gopal. Respondent1 is running the business of Kariana merchant; while Ramesh Chander petitioner1 carries on business of Sugar (Gur) and also of commission agency; and petitioner2 is his Munim. In the last week of February 1987 petitioner2 visited Bahadurgarh and advised respondent1 to increase his business and that he was in a position to help him. He told that he could do business in Gur through the agency of petitioner1. He further assured that there was good profit in the business of Gur and Muzaffar Nagar was a good market for that item. He also assured that his firm would purchase the Gur on the instructions of respondent1 and the profit earned would be sent to him at Bahadurgarh after deducting their Arhat. It was also assured that on purchase, the respondent would be the owner of the Gur. It was also disclosed that the respondent would be required to send the price of Gur purchased against bills. On the basis of these assurances, respondent1 instructed petitioner2 to purchase 150 Kattas of Gur on his behalf. The respondent received bill bearing No. 6206 dated 27.1.87 for a sum of Rs. 18,9393 with respect to the purchase of 135 Kattas of Gur. On the basis of receipt of the bills, the respondent sent 3 draft for Rs. 17,200/. In May 1987 he sent a letter to the petitioner, making an inquiry as to the price of the Gur and also advised if the price had gone up, then the same might be sold and after sale of Gur and deduction of commission, account should be prepared and the balance amount be sent to him at Bahadurgarh. No reply was sent to the letter and a second letter sent also remained unreplied. Having failed to obtain a reply to his letters, respondent1 visited Muzzaffarnagar in August 1987 and contacted petitioner1 who told him that the accounts were known to Shiv Charan, petitioner2 and he would send the details on his arrival who was out of station. The respondent accepted this assurance and then waited for the respondent. In November 1987 the respondent contacted the petitioner on telephone and made an inquiry about the accounts and also conveyed his resentment, but no communication was received. The respondent again visited Muzaffarnagar in January 1988, but having failed to trace the petitioner, he returned. The respondent, thus, claims that the petitioners had misappropriated the sale proceeds and committed Criminal offences under Sections 408/409 and 420, IPC.
The learned Magistrate summoned the petitioners vide order dated 5.8.88 which was challenged in revision before the learned Sessions Judge, Rohtak who allowed the same and gave a direction for passing a speaking order. The learned Magistrate vide order dated 29.5.89 again ordered the summoning of the petitioners for offences under Sections 409/420, IPC. This order was again challenged before the learned Addl. Sessions Judge who held that no offence under Section 420, IPC was made out and set aside the order of the Magistrate to that extent. The order of summoning for offence under Section 409, IPC was, however, not interfered with. Before the learned Sessions Judge passed his order Annexure P12 dated 28.5.90, the respondent had filed a civil suit on 9.1.90 against the petitioner and others and a copy of the plaint is Annexure P11.
The petitioners claim that, in fact, respondent1 had been doing the business of purchase and sale of Gur and made profits, but this business was carried on in the name of Chattar Bhuj Birijish Kumar and in the year 197980, he did this business in the name of his elder son Rajiv Gupta. In the year 1987, the respondent again showed his inclination to do that business and conveyed his instructions upon which, the petitioner firm purchased 205 bags of Jaggery (Gur) and received a draft for Rs. 9,7000/ along with the letter dated 2.2.87 in which it was mentioned that the amount of Rs. 9,700/ be given credit to respondentfirm while Jaggery (Gur) purchased by the firm be reflected in the books in accordance with the instructions given in the letter by Duli Chand sent on the same day. Copy of letter is Ex P1 and the letter written by Duli Chand was Ex. P2. The goods were thus, shown in the account books in accordance with the instructions and only 135 bags were reflected in the account of the respondent. Two other drafts which were received, were credited to the account of Pawan Kumar son of Harish Chand, as per directions of the respondent contained in letter Annexure P3. On receipt of letter from Duli Chand Annexure P4 dated 19.9.87 and Post Card dated 18.3.88 Annexure P5 that the goods be sold on the prevalent market price, the goods were, in fact sold. The purchase price was credited to the account of Madan Gopal to the extent of Rs. 18,93393; Pawan Kumar Rs. 19,038.34 and Sarvesh Gupta Rs. 19,275.17. There was, thus, a loss of Rs. 6,633.40 in the account of Madan Gopal; Rs. 6,737.86 in the account of Pawan Kumar and Rs. 5.990.03 in the account of Sarvesh Gupta. A total loss of Rs. 19,361.32 and after adjusting the amount of three drafts of Rs. 17,200/ a balance of Rs. 2,161.32 was due towards respondent1 which was paid in cash by Sarvesh Gupta and the account was finally settled. Having suffered a loss in the business in which he had earlier earned profits, the respondents felt upset and had found a way to harass the petitioners by filing a criminal complaint. No offence is made out against the petitioners and the entire dispute is of a civil nature and further that the Court at Bahadurgarh had not jurisdiction.
The learned counsel for the respondent has raised preliminary objections to the entertainment of criminal miscellaneous under section 482, Cr.P.C. It has been urged that by means of this criminal miscellaneous, the petitioners, in fact, have brought a second revision and challenged the order of summoning and the same was barred by the rule contained in section 379(2), Cr.P.C. There can be no legal dispute with the position that a second revision is not competent against the same order. However, in the present case, the petitioners are seeking the quashing of the complaint itself on the basis that no criminal case is made out and the entire dispute is of a civil nature. If the complaint itself is to be quashed, the other orders have to fall. The preliminary objection is, thus, overruled.
The facts that the petitioners purchased Gur on behalf of the respondent and received the amounts from the respondent and further that the Gur was sold, are not disputed. While the petitioners claim that no accounts were rendered, it is their case that with respect to the account of the respondent, there was loss and the amount having been paid up by Sarvesh Gupta, the accounts were closed. Respondent1 has since brought a civil suit for rendition of accounts and copy of the plaint is Annexure P12. It is claimed that the goods had been purchased for a total sum of Rs. 18,933,33 and a sum of Rs. 17,200/ by means of 3 drafts, has been sent and in May 1987 the respondent had asked the petitioners to sell the goods and sent the price thereof.
It is the case of the petitioners that it was on the basis of letter written by Duli Chand and sent along with the letter of respondent1, that 135 bags of Gur were shown to have been purchased in the account of the respondent and an equal number of bags, in the names of Pawan Kumar and Sarvesh Gupta each. In the return filed, it has been averred that the letters purported to be sent by the respondent and dated 4.3.87 and 21.3.87 are forged. In fact, the respondent had ordered the purchase of 150 bags of goods though only 135 bags were purchased. The respondent has nothing to do with the contract of 405 bags purchased by Duli Chand which were with respect to different contract. Ex P1 is a copy of letter dated 2.2.87 which is said to have been sent with a draft of Rs. 9,700/ with a direction that the amount be credited to the account of the respondent and they were also asked to reflect the purchase in accordance with the letter in the hand of Duli Chand. Ex P2 is the letter stated to have been sent by Duli Chand and is marked as P2. There is another letter P3 said to have been sent by the respondent, along with a draft of Rs. 3000/. P4 and P5 are the letters sent by Duli Chand, asking the petitioners to sell the goods.
There are three material documents, i.e. letters Ex. P1, P2 and P3. The genuineness thereof is being challenged by the respondent. The petitioners claim to have acted on these documents and thus, shown the purchases in different names. The same matter is to be gone into in the civil suit, for determining as to whether the documents were genuine and so, whether these were rightly acted upon. A dispute also arises as the selling of Gur on a particular date and at the market price, as to whether the petitioners had acted bona fide under instructions of their principal to sell the goods, and if that sale had caused loss to the principal, these are pure questions of civil nature and the Civil Court is already seized of the same on the basis of a suit filed by the respondent.
There is force in the contention of Shri S.P. Gupta, learned counsel for the petitioners that the respondent has tried to settle the civil dispute with the aid of criminal law. The same amounts to abuse of process of the Court. In Trilok Singh & ors. v. Satya Deo Tripathi, AIR 1979 SC 850 their Lordships had been laid down that where the dispute raised was purely of a civil nature, criminal proceedings could not be initiated and no process could be issued. I agree with the learned counsel that the dispute herein was of a civil nature.
Since the documents of the basis of which the petitioners claimed to have acted upon are already subjected matter of scrunity by a Civil Court the ratio of Sardool Singh and anr. v. Smt. Nasib Kaur, 1987(2) Legal Reports and Statues (PB) 633 is attracted. I, thus, conclude that the continuation of the proceedings on the basis of (sic) Court. I hereby allow the criminal miscellaneous; quash the impugned complaint Annexure P6 and along with the same all the consequent proceedings, inclusive of the summoning order Annexure P9 and the order Annexure P12.