P K DAS GUPTA Vs. JAYSUKHLAL MAHASHANKER
HIGH COURT OF GUJARAT
P K Das Gupta
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(1.) . An Executive officer of a private firm invoked the jurisdiction of the criminal court by filing Criminal Case No. 2879 of 1982 in the court of JMFC Jamnagar. He alleged that the applicants- original accused office bearers of State Trading Corporation of India had committed an offence of cheating and misappropriation in respect of goods which were ordered by the firm Dhanani Engineering Works in which the complainant is serving as an Executive Officer. In the complaint five office bearers of the State Trading Corporation of India three of whom have their offices at New Delhi and two of them have their offices at Madras have been arraigned as accused. In the com- plaint no where it is stated that which particular officer had made misrepresentation to the complainant. All that is alleged in the complaint is that there was some discrepancy in the goods ordered by the firm and goods delivered by the State Trading Corporation. It is further alleged that an amount of Rs. 12 500 paid by the firm by way of deposit at the time of placing the order has been wrongly retained by the State Trading Corporation. On these allegations it was sought to be made out that the officers of the State Trading Corporation have committed offences of cheating and misappropriation. This comp- laint was filed on 3/11/1982 On the same day the learned Magistrate ordered to issue bailable warrant in the sum of Rs. 1500/- against each of the applicants accused for the offences under section 406 and section 420 of the Indian Penal Code. It is this order passed by the learned Magistrate ordering to issue bailable warrant against each of the applicants accused which has been challenged by the applicants.
(2.) . As far as the complaint is concerned on the face of it it is difficult to say that any offence of cheating has been made out against any of the applicants accused. Secondly the allegation regarding misappropriation also has no basis whatsoever. The amount was paid by the firm by way of deposit at the time of placing order. Simply because there is some delay in answering the letter it cannot be said that the officers of the State Trading Corporation have wrongly retained the amount and have committed misappropriation of the amount so deposited. In fact it is pointed out by the counsel for the applicants- accused that letters were written to the firm of the complainant to the effect that the amount of deposit of Rs. 12 500 could be adjusted against the second indent. However even without going into the details of the defence and the contentious raised on behalf of the applicants herein on reading the complaint itself it becomes clear that no criminal offence whatsoever is disclosed in the complaint. The dispute between the parties is essentially that of civil nature and no criminal case whatsoever is made out against the applicants accused. In this view of the matter the order issuing bailable warrant against each of the applicants accused and the criminal prosecution launched against the accused will have to be quashed and set aside.
(3.) . It is unfortunate that a private business concern having relations with a public sector undertaking has resorted to criminal prosecution through its Executive Officer. Even on notice was given before resorting to the criminal prosecution. It does not appear that any other steps for settling the dispute were taken before filing the criminal case. It is still more unfortunate that the learned JMFC Jamnagar thought it fit to issue bailable warrant in such a matter against the responsible officers of a public sector undertaking. It appears that this power of issuing bailable warrant and directing the accused to remain personally present in court is often lightly exercised by the lower courts. For obvious reasons of delay and expenses every litigant businessman or otherwise is likely to be tempted to resort to a short-cut of filing criminal case to bring about a settlement of essentially a civil dispute. But in such cases the lower criminal courts should be slow to exercise their powers. I am constrained to make these observations on account of the fact that during the course of this week itself I have come across few such similar cases in which the process has been issued by lower criminal courts in the State against persons residing in Assam Kerala and other far away places of the country. It does appear that the power of issuing process for alleged offences of cheating and misappropriation is being exercised in respect of the dealings having their roots in some business transactions which are essentially that of civil nature. This power has got to be exercised with restraint and circumspection. Other organs of the State machinery are often told that larger the power greater the need for self restraint to prevent the abuse of power. It must be realised by the lower courts that every step taken by them while deciding a case takes the place of a brick in the edifice of its public image and that in turn shapes the image of the entire judiciary. Vast majority of the people come in contact with judiciary at the lower levels. The need for self restraint and circum- spection before exercising this power by the lower courts is to be stressed with emphasis for two reasons:
(1) Only rich and powerful persons can approach superior courts and may get the proceedings launched against them stayed or quashed while poor people and others who are not guided properly will suffer the harassment of protracted criminal trial and in the process they will be forced to come to settlement with the other side. In the end criminal case may be disposed of but the people who suffer the pangs of criminal trial will surely not carry with them a good impression about the judicial process. (2)Secondly other organs of the State machinery are subject to anti-date of public criticism but the judiciary is not exposed to public criticism. Even the most rebellions of the politicians and journalists have remained away from the precincts of the court and have restrained themselves from criticising judicial actions of the courts.
It has got to be realised that in democracy power vests with the people. A particular organ of the State including judiciary is conferred with the power in accordance with the will expressed by the people through their chosen representatives in the Legislature. If the power is exerci- sed indiscriminately and so as to cause harassment to the people for bringing pressure for the settlement of civil disputes some day it may be taken away or truncated. Here one may recall the situations created by police while detaining the people at the time of their arrest in cognizable cases. Because the power was being exercised indiscrimina- tely and many a times for ulterior purposes it had to be truncated by introducing the provisions of anticipatory bail. Would it not be better to exercise self restraint and be little more pragmatic and circumspect before issuing process and/or warrants in such cases rather than arousing the feelings of the people which may ultimately lead to erosion of power of the magistrates? ;
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