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Messers Sunshine Steel … vs State Of U.P. And Another on 13 April, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR/Reserved

Court No. – 63

Case :- APPLICATION U/S 482 No. – 40425 of 2011

Applicant :- Messers Sunshine Steel Industries And Another

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Dinesh Tiwari

Counsel for Opposite Party :- Govt.Advocate,K.K. Arora,Rajeev Chaddha

Hon’ble Amar Singh Chauhan,J.

Heard Shri Dinesh Tiwari, learned counsel for the applicants, Sri K.K. Arora, learned counsel for the o.p. no. 2 and learned A.G.A. for the State.

The applicants through this application moved under Section 482 Cr.P.C. before this Court have invoked inherent jurisdiction of the Court with prayer to quash the complaint case no. 2016 of 2011 (Messers Big B. Sons Vs. Messers Sunshine) under Section 406 I.P.C. P.S. Hapur Kotwali, District- Hapur (Panchsheel Nagar) pending in the court of Additional Chief Judicial Magistrate, Hapur (Panchsheel Nagar) and as well as for quashing the summoning order dated 01.09.2011 passed by the learned Magistrate.

The brief facts which are requisite to be stated for adjudication of this application are that complaint was filed with the allegation that complainant’s firm does business of purchase and sale of utensils from opposite party no. 2 (present applicant). Shri Bajrang Sharma representative of accused’s firm came at the firm of complainant on 20.11.2010. The complainant placed order for 5 tons stainless steel utensil @ Rs. 82 per kg. on which Shri Bajrang Sharma directed the complainant for payment of amount of earlier order and the amount of present order on which the complainant informed to Shri Bajrang Sharma that on 22.11.2010 he will deposit the amount in account of the firm through RTGS and on 02.12.2011 the complainant deposited Rs. one lac in the account of firm through RTGS. On 06.12.2010 Bajranj Sharma came at the complainant’s firm and asked for Form 38 for sending goods but at that time the Form 38 was not available to the complainant. The complainant informed him that he will supply the Form 38 on 07.12.2010. On 7.12.2010, he supplied the Form 38 to Shri Bajrang Sharma. After receipt of Form 38, the partner of accused’s firm informed Bajrang Sharma that the price of goods are rising. On 07.12.2010 Shri Bajrang Sharma left Hapur for Moradabad and did not send the utensils. In this way, Rs. 1,57,974/- of the complainant is due on the accused firm which is clear from the Bank’s statement and due to rise of price of stainless steel utensils from Rs. 82 per kg to Rs. 102 per kg, the complainant is entitled to the sum of Rs. 2,57,974/- from the accused’s firm. After recording the statement under Section 200 Cr.P.C. and accepting the documentary evidence under Section 202 Cr.P.C. learned Magistrate on being satisfied issued process against the applicants.

Feeling aggrieved the applicants moved this application under Section 482 Cr.P.C. before this Court.

It has been submitted by the learned counsel for the applicant that form the complaint filed by the complainant it is clear the admission of complainant that he was purchasing the articles from the accused’s firm and some amount of accused’s firm was due against him thereafter he placed further order but the accused’s firm supplied the articles after taking its earlier balance amount. In this way, it is matter of accounting and it is not an offence under Section 406 I.P.C. It has further been submitted by the learned counsel for the applicant that the complainant’s firm supplied road permit for sending the goods to Messers Balson International India of which Smt. Shweta Goel wife of complainant is proprietor of the firm. The proprietor of complainant’s firm directed the applicant to send the goods in the name of Messers Balson International India. The applicant’s firm sent goods of Rs. 5,86,413/- to Messers Balson International India on the direction of complainant for which road permit carrier was provided by the applicant. In this respect applicant’s firm sent a notice dated 24.03.2011 for payment of outstanding amount but after receipt of the said notice, the complainant has filed the present false complaint in order to usurp and avoid the payment of the balance amount of Rs. 3,34,586/- of applicant. The entire complaint proceeding is of civil nature and is matter of accounting and Rs. 3,34,586/- of petitioner/applicant’s firm is still due against the wife of proprietor of complainant’s firm which has yet not been paid. As such, no prima facie case under Section 406 I.P.C. is made out from the complaint and from the statement of witnesses. The entire proceeding is an abuse on the process of court and in the interest of justice is liable to be quashed.

Before averting to the claim of the parties, it is useful to quote the provision of sections 202 and 204 Cr.P.C.

202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,–

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

204. Issue of process:-

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself), some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87″.

The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon’ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:

“The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection”.

In the case in hand the complainant was purchasing the stainless steels utensils from accused’s firm and some amount of accused’s firm was due against him thereafter he placed further order but the accused’s firm supplied the articles after taking its earlier balance amount. It is not being denied by the complainant that complainant’s firm supplied road permit for sending the goods to Messers Balson International India of which Smt. Shweta Goel, wife of complainant is proprietor of the firm and the applicant’s firm sent goods of Rs. 5,86,413/- to Messers Balson International India on the direction of complainant.

Therefore, the matter is of a civil nature involving the question of accounting but the Magistrate mechanically summoned the applicant without appreciating the procedure of law as also laid down by Hon’ble the Apex Court in Pepsi Foods Limited and another Vs. Special Judicial Magistrate and others (1998) 5 SCC 749 held as under:

“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

The Hon’ble Apex Court in the another case of Mohammed Ibrahim and others Vs. State of Bihar and another [(2009) 8 SCC 751] has held that this court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.

In view of what has been submitted and discussed above, the matter is of civil nature especially of accounting which can be decided by the evidence of the parties and dragging the matter before the criminal court is nothing but an abuse of the process of law.

The application is liable to be allowed.

The application is, accordingly, allowed and the proceedings of complaint case no. 2016 of 2011 (Messers Big B. Sons Vs. Messers Sunshine) under Section 406 I.P.C. P.S. Hapur Kotwali, District- Hapur (Panchsheel Nagar) pending in the court of Additional Chief Judicial Magistrate, Hapur (Panchsheel Nagar) as well as summoning order dated 01.09.2011 are hereby quashed.

Order Date. :- 13.4.2018.

A. Pt. Singh.

 

 

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