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Judgment
This Application has been filed by the applicant
praying to quash and set aside the order passed in
Criminal Case No. 3031 of 2010 by the Court of
Additional Judicial Magistrate, First Class, Vapi below
Exhibit 2 dated 23.02.2011 rejecting an application
preferred under Section 239 of the Code of Criminal
Procedure, 1973 (for brevity " CrPC ") and to
discharge the petitioner in connection with the
Criminal Case No. 3031 of 2010 pending before the
Court of Additional Judicial Magistrate First Class,
Vapi.
Brief facts of the case are that the petitioner is
a Transport Contractor and Commission Agent. He
engaged in the business in the name and style of
"Shri Krishna Roadlines" at Vapi GIDC. The
petitioner does not own any truck. However, he calls
for truck from the market and supplies it to the
party after taking his commission. That, for
supplying the goods at Kanpur, complainant called
the petitioner to supply the truck and from market,
the petitioner made available truck, being
registration No. UP-70-AT-9985 having driver named
Javed Mohammed Gafar and owner Pannalal
Jaiswal. Yarn was loaded on 29.05.2010 and
additional goods viz., chemical was loaded on the
said truck, since the capacity of the truck was 16
tones. Neither the goods were delivered nor driver
and truck was traceable for quite long period, and
therefore, an FIR , being CR No. I-64 of 2010 was
registered with Vapi GIDC Police Station under
Section 407 and 114 of the Indian Penal Code on
09.06.2010, wherein, the petitioner was described
as accused no.3. That, in this connection, the
petitioner was arrested on 22.07.2010 and
thereafter, released on bail. The Investigating
Agency filed charge sheet against the petitioner on
21.08.2010, wherein he is mentioned as accused
no.1, since the driver and owner of the truck were
absconding. Thereafter, the petitioner preferred an
application vide Ex. 2 in Criminal Case No. 3031 of
2010 before the learned Judicial Magistrate, First
Class, Vapi under Section 239 CrPC to discharge
him. The said application came to be rejected by the
Court of learned Additional Judicial Magistrate, First
Class, Vapi on 23.02.2011 and as against the said
order, the petitioner has preferred the present
petition.
Heard learned advocate Mr. Chetan K. Pandya
appearing on behalf of the petitioner and learned
APP Mr. LB Dabhi appearing on behalf of the
respondent no.1-State.
Learned advocate Mr. Chetan K. Pandya
appearing on behalf of the petitioner submitted that
the impugned judgment and order passed by the
trial court dated 23rd February 2011 below
Application Exhibit 2 in Criminal Case No. 3031 of
2010 is contrary to law and evidence on the record.
That, the learned Judge has failed to appreciate that
the petitioner is the broker and has nothing to do
with the alleged offence. It is further submitted that
the petitioner is engaged in the business as a
Transport Contractor and Commission Agent since
years together and it is the practice in the business
to call for truck from the market for transportation
of goods. It is the practice in the market that
wherever truck would come to Vapi, it could be
loaded and after unloading, it would report to
various commission agents for return goods of the
particular State. The petitioner has acted as a
commission agent between the truck owner/driver
and the informant. The truck directly went to the
informant and the informant instructed the truck
driver to go to Sudarshan Mill to load the goods
That, the goods were directly loaded by Sudarshan
Mills into the truck. That, there is nothing in the
charge sheet to show that goods were entrusted to
the present petitioner. That, the petitioner is not the
carrier, wharfinger or warehouse keeper, as no
goods were entrusted to him, and therefore, he
cannot be responsible for the offence, as alleged in
the complaint. There is nothing in the charge sheet
papers to show that the petitioner has abated the
offence of criminal breach of trust. That, the offence
punishable under Section 407 of the Indian Penal
Code, 1860 is never made out against the present
petitioner, as he is the commission agent only and
the provisions thereof cannot be applied against the
petitioner. That, the ingredients under Section 407
IPC are not satisfied, as he is a Broker. That,
instructions mentioned in the letter head of "Krishna
Road Lines" clearly shows that party should verify
the vehicle documents and if they found genuine on
their verification and then only they should entrust
the goods. That, the petitioner was not present
either at the time, when the truck reached at the
informant''s premises or at the time of loading of the
goods, or even at the time when the truck left. That,
there is no evidence that the petitioner was with the
truck at any point of time or even during its transit.
That, no offence has been committed under Section
407 and 114 IPC by the petitioner. In support of his
arguments, learned advocate Mr. Chetan Pandya
has relied upon the judgments, reported in Crimes
(HC) 1 (1985) 453 (Panna Lal Maheshwari v.
Rajindal Kumar Agarwalla) and 1991 GLH 248
( Dhramchand son of Gopi Ram v. State of Gujarat ).
Per contra, learned Additional Public Prosecutor
Mr. LB Dabhi appearing on behalf of the respondent
no.1/prosecution strongly opposed the arguments
made on behalf of the petitioner to contend that
learned trial Court has rightly dismissed the
application for discharge submitted by the
petitioner by observing that Section 114 IPC is
applied and participation of the applicant in the
offence can only be decided after the evidence is
led in trial. It is further submitted that the conduct
of the petitioner is suspicious, and therefore, he
may be punished under Section 114 IPC read with
Section 407 IPC. That, the judgment relied upon by
the petitioner of Patna High Court is not applicable.
While in the instance case, further charge of Section
114 of the Indian Penal Code is applied, since prima
facie, abetment of the present petitioner is found. It
is further submitted that when two views are
possible, this Court should not interfere with the
finding of the trial Court. That, there is no illegality
or error committed by the learned Court below in
dismissing the application for discharge, presuming
that no conviction would be passed in future. That,
the ground raised by the petitioner in his application
for discharge cannot be sustained, at this stage.
Hence, it was requested by him to dismiss the
petition.. In support of his arguments learned
Additional Public Prosecutor has relied upon the
judgments reported in 2009 (6) SCC 364, 2008(2)
GLH 596 and 2009 (16) SCC 429.
Having considered the facts of the case and
submissions made by learned advocates appearing
on behalf of the petitioner as well as learned APP
Mr. LB Dabhi appearing on behalf of the respondent
no.1-State, it appears that the complainant
approached the petitioner to supply a truck. The
applicant, from the market, made available truck,
being registration No. UP-70-AT-9985 having driver
named Javed Mohammed Gafar and owner Pannalal
Jaiswal. It appears that Yarn was loaded on
29.05.2010 and thereafter, additional goods viz.,
chemical was loaded in the truck, since the capacity
of the truck was 16 tones. It appears that the goods
loaded in the truck was not delivered and driver as
well as truck were not traceable, and therefore, a
complaint was lodged by the complainant, which
came to be registered as C.R. No. I-64 of 2010 with Vapi GIDC Police Station for an offence punishable
under Sections 407 and 114 IPC, wherein the
present petitioner is shown as one of the accused.
After completing the investigation of the offence,
charge sheet was filed against the present
petitioner on 21st August 2010, wherein he has been
shown as Accused no.1. The driver and owner of the
truck have been shown as absconders. During the
course of investigation, statement of witnesses
were recorded by the Investigating Agency. From
the complaint, it transpires that on a request being
made by the complainant, a truck was arranged by
the present petitioner from the market, having
driver namely Javed Mohammed Gafar, resident of
Manikpur Kudda Pratap Gadh, Uttar Pradesh. The
complainant, in his complaint, has shown status of
the present petitioner as a Broker on 29th May 2010.
A telephonic message was received by the present
petitioner that the truck in question had not reached
at its destination ie., Kanpur, Uttar Pradesh and for
the first time on 5th June 2010, the present
complainant was informed by the Manager of
Kanpur Office that the truck had not reached at the
destination, and therefore, the complainant
informed him to wait for a day so that he could
contact the driver. Hence, the complainant tried to
contact driver-Javed and owner of the truck Pannalal
Ashokkumar Jaiswal on the mobile number. As it
was switched off, thereafter on 7th June 2010, as
since the truck had not reached at the Kanpur
office, the complainant contacted the present
applicant and informed about the truck having not
reached at the destination. From the statements of
Ramesh Mahavir Sharma, Ashvini Shriramnivas
Vashishtha, Arvind Shripalsing Yadav, Sandit
Shrichand Tiwari and others, it transpires that the
present petitioner was doing his business as a
broker, who only arranged for the truck from market
on commission basis. There was no entrustment of
any goods to the present petitioner nor the
petitioner has misappropriated the goods. One
document in the form of letter head of Shree
Krishna Roadlines, Vapi is produced during the
course of arguments by learned advocate for the
petitioner, which clearly speaks that, "please see
that all the papers are correct. If not correct, please
confirm with the owner of vehicle". It also shows
that the liability to confirm papers of the motor
vehicles are on the shoulders of the party, who
requested for hiring the truck. From the charge
sheet papers produced on record, it does not in any
way show that the petitioner was present at the
time of loading of the goods in the said truck or the
said truck was loaded with the goods by him or
entrusted to him. Thus, the petitioner is no any way
responsible for the goods, if not reached at the
destination. If the goods could not be delivered,
then the complainant ought to have prosecuted the
driver and owner of the truck, in which, goods were
loaded. The petitioner, being only a broker and a
commission agent, cannot be held responsible for
breach of contract and he cannot be liable to be
prosecuted under Section 407 IPC. Same view has
been taken by the High Court Patna in Panna Lal
Maheshwari v. Rajindal Kumar Agarwalla,
reported in Crimes (HC) 1 (1985) 453 and in another
judgment rendered in case of Dhramchand son of
Gopi Ram v. State of Gujarat, reported in 1991 GLH
248, which being a petition under Section 482 CrPC
filed for quashment of the complaint filed under
Section 407, 420 and 114 of IPC. In the said FIR,
there was no disclosure of any material, which
would constitute any offence. Matter was underwent
for investigation by the police and no process was
issued by the Court. Under the circumstances, a
question arose whether the Court can exercise its
inherent jurisdiction under Section 482 CrPC to
interfere with statutory powers of Police to
investigate into the alleged offence, to secure the
ends of justice. This Court, in the fact of situation,
was pleased to hold that there was no question of
any trust having been created by the accused in the
complaint for committing criminal breach of trust
under section 407 IPC and remedy under the Civil
law is available to the complainant and he cannot
resort to short out remedy of criminal prosecution.
The complaint was quashed and petition was
allowed by this Court.
In case of Yogesh @ Sachin Jagdish Joshi v.
State of Maharashtra, reported in 2008(2) GLH
596, it has been held that, "the test to determine a
prima facie case depends upon the facts of each
case. By and large, however if two views are equally
possible and the Judge is satisfied that the evidence
produced before him gives rise to suspicion only as
distinguished from grave suspicion, he will be fully
within his right to discharge the accused. It is not to
see as to whether the trial will end in conviction or
not. Test to be applied is whether the materials on
record, if unrebutted makes conviction reasonably
possible". There cannot be any dispute in respect of
the observations or ratio laid down by the Apex
Court and certainly, the facts of each case differs.
Here, as the present petitioner was working as
broker only and he had only arranged for a truck on
a request made by the informant/ complainant, as
he was not responsible for any loss of the good at
any point of time. If it is stated that "if the goods is
not delivered, within a week, it must be brought to
our notice otherwise we are not held to be
responsible" would not mean that any criminal
liability would be entrustment on the shoulder of the
present petitioner. If any damages are caused to
the informant/complainant, Civil remedy would also
be available to him. Thus, the judgment, as cited by
learned APP Mr. LB Dabhi for the respondent no.1
would not helpful to the prosecution.
In case of Rumi Dhar (Smt) v. State of West
Bengal & Anr ., reported in (2009) 6 Supreme
Court Cases 364, allegations were made for taking
part in conspiracy in defrauding the Bank for taking
loan. A Suit for recovery thereof was filed by Bank
before DRT, in which settlement came to be arrived
and loan was repaid by the appellant. The question
was in respect of maintainability of criminal action
initiated against the appellant. It was held that civil
and criminal proceedings can proceed
simultaneously and bank is entitled to recover the
amount of loan given to debtor. If in connection with
obtaining loan, criminal offences were committed by
persons accused thereof, including officers of Bank.
Criminal proceeding would also indisputably be
maintainable, when the settlement is arrived at by
and between creditor (Bank) and debtor (appellant),
the offence committed, as such, does not come to
an end.
Here, in the instant case, no civil remedy was
chosen by the informant/complainant against the
present petitioner for the loss caused to him, if any,
but from the papers available on record, prima
facie, no criminal offence is prima facie committed
by the present petitioner under Section 407 IPC, as
he being only a Broker, who arranged for a motor
vehicle for carriage of goods.
In case of Central Bureau of Investigation
v. Mukesh Pravinchandra Shroff & Ors.,
reported in (2009) 16 SCC 429, it has been held that
at the stage of framing charge, what is required to
be seen is whether there were sufficient grounds to
proceed against the accused. In the cited case,
order of acquittal in garb of order of discharge was
passed by the learned Special Court, which was
challenged before the Apex Court and Appeals were
allowed. Here also, looking to the facts of this case,
there is no sufficient evidence found from the police
papers to say that present petitioner had abetted
criminal act, which is punishable under Section 407
IPC.
In the result, present petition succeeds. Order
passed in Criminal Case No. 3031 of 2010 by the
Court of Additional Judicial Magistrate, First Class,
Vapi below Exhibit 2 dated 23.02.2011 rejecting
application preferred under Section 239 CrPC to
discharge him is hereby quashed and set aside with
consequential proceedings. Accordingly, petitioner
shall be discharged from the offence, as
chargesheeted.
Rule discharged. Ad interim relief granted
earlier is hereby confirmed. No costs.