Decided on December 07,1979


Referred Judgements :-


Cited Judgements :-



M.P.Singh, J. - (1.)The application under section 482, Criminal Procedure Code (for short, 'the Code') is by two of the accused. The prayer ia to quash the criminal proceedings under sections 420 and 406 of the Indian Penal Code arising out of the Complaint Case No. 230 of 1975 which is pending in the court of Subdivisional Judicial Magistrate, Bhagalpur. The complaint was made on 13th January, 1975. A further prayer was made that the order dated 3th August, 1978 by which the petitioners were summoned to face the trial be also quashed as being illegal and without jurisdiction. The petitioners are the partners of a firm known as M/s. Singhania Trading Co., Asansole (briefly, the Asansole firm) and are dealers in foodgrains. The complainant Nawratan Mal Dudharia is the proprietor of M/s. Sumer Mal Bahadur Singh of Shermari Bazar at Pirpainti (for short, the Pirpainti firm), He also is a dealer in foodgrains.
(2.)The case of the complainant, In brief, is that 95 bags of gram weighing 95 quintals belonging to the complainant, namely, the Pirpainti firm were taken by the Asansole firm through its Munim Mangi Ram on 28 November, 1974 on a truck bearing No. B. R. J. 2714 for disposal at the rate of Rs. 260/- per quintal (the total sum, thus, being Rs. 25,700/-) out of which Rs. 1,000/-was to be deducted as Arhat charges and truck hiring charges and that a bank draft for the balance amount of Rs. 23,700/- was to be sent to the complainant but the money was not sent and it was not paid. On 14th December, 1974 the complainant sent a telegram to the Asansole firm directing it not to sell at a price less than Rs. 260/- per quintal, whereupon the Asansole firm informed it on 19th December, 1974 that the goods had already been sold at Rs. 152/- per quintal. On receipt of that telegram the complainant sent another telegram telling them that they had wrongly sold the goods at that price. The complainant was examined on solemn affirmation and further four witnesses were also examined by the Magistrate. Those witnesses supported the fact that 95 bags of gram had been taken by the Asansole firm through their Munim Mangi Ram on 17th January, 1975. Cognizance for offences under sections 420 and 406 Indian Penal Code was taken against Mangi Ram only. On 4th June, 1977 the complainant filed an application to summon the two petitioners also to face the trial. The prayer to summon them was rejected on 19th July, 1977. Charges were framed for the offences of cheating and criminal breach of trust on 20th September, 1977. Two witnesses were examined before charge and one was examined after the charge. According to the last witness Babulal also was present along with Mangi Ram at the Pirpainti firm during the discussion about the taking of gram from Pirpainti firm to Asansole firm. A fresh petition was filed by the complainant on 3-8-1978 to summon the petitioners and this time it was allowed by the Magistrate by his order dated 26th August, 1978. At this place I may mention one more fact, namely, that the complainant has also filed a Money Suit No. 116 of 1977 hefore the Subordinate Judge, Bhagalpur against the Asansole firm and their Munim Mangi Ram for realisation of a sum of Rs. 33,000/- and odd, the same being the price of 95 bags of gram with interest and cost.
(3.)From the alleged aforesaid facts it is clear that the case is essentially one of civil nature and not of a criminal nature. The parties entered into an agreement with their free volition to the effect that the goods were sold at Rs. 260/- per quintal through the Asansole firm as Arhatia ; the Asansole firm was to act practically as an agent. In the petition of complaint there is absolutely nothing to show that the Munim Mangi Ram, farless the petitioners, had any intention to cheat the Pirpainti firm from the outset. The allegations made in the complaint that on 29th November, 1974 after the arrival of the goods at Asansol, the Asansol firm showed inability to send the Bank draft due to the closure of the Bank was a subsequent event, the goods having been sent on 28th November, 1974. In the complaint itself it is alleged that the Asansole firm made a further request to the Pirpainti (sic) for sending more gram on two trucks at the rate varying from Rs. 221 to 229/- and this shows that the Asansole firm wanted to enter into further business agreement with the Pirpainti firm. To me it appears that it was only a case of non-payment of money at the higher rate demanded by the complainant. It is case of mere breach of contract for which "the complainant had a civil remedy by way of civil suit and in fact, a money suit has been brought by the complainant as above-mentioned. It is not a case in which the complainant should have taken recourse to further criminal proceedings. In my opinion the criminal proceeding is merely a camouflage of a civil dispute. It has been pointed out by their Lordships of the Supreme Court in Mahadeo Prasad v. State of West Bengal, (AIR 1954 SC 724) : (1954 Cri LJ 1806) that if the accused had, at the time he promised to pay each against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. In Mubark Ali Ahmad v. State of Bombay (MR 1957 SC 857) : (1957 Cr. LJ 1346) it was reiterated by their Lordships of the Supreme Court that the question whether the evidence discloses only a breach of civil liability or a criminal offence of cheating depends upon whether the complainant in parting with the money acted on the representation of the accused and in belief of the truth thereof and whether those representations, when made were in fact false to the knowledge of the accused and whether he had dishonest intention from the outset. In Hari Prasad Chamaria v. Bishnu Kumar Surekha (AIR 1974 SC 301) ; (1974 Cri. LJ 352) the complainant intended to start business, and gave in full faith a large amount to the respondents for the same. The respondents started business in their own name and refused to render accounts or return money. The complainant prosecuted the accused, under section 420 J. P. C. The accused prayed for quashing on proceeding under section 561-A Cr. P. 0. which were quashed by the High Court. The complainant went up in appeal to the Supreme Court. Their Lordships observed that (at pages 353 - 354 of 1974 Cri LJ).
"Even assuming prima facie all the allegations in the complaint to be true they merely amount to breach of contract and could not give rise to criminal prosecution. There was nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with the money not did the complaint indicate that the respondents had induced the appellant to pay them the amount parted with. The appellant also did not allege the respondents making any representation to him for parting with the money. Mere fact, that they did not abide by their commitment as to starting of the business in complainant's name as agreed to would not fasten them with criminal liability"
. The same principles had earlier been laid down in Shiva Sagar Pandey v. King-Emperor, (1935) 16 PLT 553 by Fazal Ali, J. (as he then was). It was pointed out in that case that where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed and where the party said to be aggrieved has an alternative remedy in the civil court, the matter should not be allowed to be fought in the criminal court. In Bishun Kumar Surekha v. State of Bihar, 1970 PLJR 120 also Kanhaiyaji, J. observed that "mere breach of contract cannot v give rise to a criminal prosecution where there is no clear intention of the the accused at the time the occurrence is said to have taken place and when the party aggrieved has alternative remedy in the civil court, the matter should not be allowed to be fought in the criminal court." Similar observations were made in the case of Kamakhaiya Narain Singh v. Ram Lakhan Singh, 1970 BLJR 571 and also in Har Narain Sah v. Tribeni Lal, 1972 BUR 40. for the reasons already expressed I am of the opinion that the offence of criminal breach of trust as well should not be allowed to be fought in criminal court Further more it seems that in the present case the complainant himself was not sure of this position. In the petition of complaint he made out a case of giving the goods to the Asansole firm for selling them and the Asansole firm was to act as an Arhatia but in the Money Suit No. 116 of 1977, he made out a case of sale of the goods to the Asansole firm. It was said there that the transaction was one of sale to the Asansole firm on credit and that the price was payable by the Bank Draft for encashment at Shermari. It was further said in the plaint of the money suit that the grains were sent to Asansole on the assurance of that firm that ths rate of gram per quintal at Asansole at that time was Rs. 260/- and it was on that assurance that 95 bags of gram were sent to the Asansole firm. Counsel appearing for the complainant argued that this Court was not competent to look into the plaint of the money suit but I am not inclined to accept this contention as valid. The fact about the filing of the money suit has been stated in the present application and the copy of the plaint also has been attached as Annexure 6 to this application. I think that the Court for doing justice in the case while exercising inherent powers under section 482 of the Code is entitled to look into the plaint of the money suit also.

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