Babaji Shivram Cleaning & Carriers (P). Ltd. vs Exide Industries Ltd.

Sankar Acharyya, J. - Three petitioners including the petitioner no. 1, a company and its managing Director and a Director as petitioner nos. 2 and 3 respectively have filed this application under Section 482 of the Code of Criminal Procedure, 1973 for quashing the proceeding of a complaint case against them being No. C- 8512 of 2013 (T.R. 958 of 2013) under Sections 420/406/120 B of the Indian Penal Code pending before the learned Judicial Magistrate, 7th Court, Alipore. The petitioners are accused in the complaint case which was initiated by the opposite party company as complainant.

Since filing this application on several occasions the petitioners prayed for stay of further proceedings of the complaint case (C- 8512 of 2013) and interim orders of stay were passed time to time and lastly on 17.07.2015 the interim order was extended for a period of eight weeks or until further order whichever is earlier. Thereafter, the petitioners remained unrepresented on 23.12.2015, 8.01.2016, 29.01.2016 and 03.02.2016. Under such circumstances notwithstanding absence of representation of the petitioners learned counsel for the opposite party has been heard for disposal of the case on merit.

Perused the application under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) and its annexures and also the supplementary affidavit with the annexure. At the time of hearing learned counsel for the opposite party advanced the arguments that the opposite party lodged a complaint before the learned Chief Judicial Magistrate at Alipore against the petitioners as accused alleging commission of offences of cheating and criminal breach of trust hatching a criminal conspiracy. Learned Chief Judicial Magistrate took cognizance of the offences rightly and transferred the case to learned Judicial Magistrate, 7th Court for inquiry and disposal. Learned Judicial Magistrate examined witnesses of complainant and got the matter investigated under Section 202, Cr.P.C. and on being satisfied about prima facie case issued process against the petitioners. He has submitted that filing of this case in High Court is a dilatory tactics of the petitioners and the application under Section 482 of the Code of Criminal Procedure may be dismissed.

It appears to me that there is a prima facie case made out in the complaint that the complainant (opposite party herein) is a battery manufacturing company and the accused no. 1 (petitioner no. 1 herein) is a customs house agent. Petitioner nos. 2 and 3 are Managing Director and Director of petitioner no. 1. Petitioners and opposite party entered into an agreement on 11.01.2012 for clearance of imported raw materials of the opposite party by petitioners. Firstly the petitioners made clearance of several consignments of opposite party. On 5.9.2013 opposite party entrusted upon petitioners for clearance of another consignment of raw materials in 90 bundles but with ulterior motive and mala fide intention the petitioners blocked 42 bundles and took the same to their own godown at Dronagiri, Nhava, Shava, Mumbai and handed over only 48 bundles to the opposite party. Even on demand of the opposite party the petitioners refused to return said 42 bundles to opposite party fraudulently committing offence of criminal breach of trust. Petitioners failed to establish prima facie that retaining 42 bundles out of the consignment of 90 bundles they did not commit wrong or they kept those bundles in their godown as of right. At the time of taking cognizance and also of issuing process against the accused petitioners no contrary material was present before the learned Chief Judicial Magistrate or learned Judicial Magistrate, 7th Court, Alipore. From the very face of the petition of complaint and materials revealed on inquiry nothing appeared for dismissal of the complaint under Section 203 of the Cr.P.C.

In the application under Section 482 of the Code of Criminal Procedure a series of business transactions between the parties has been pleaded claiming that the opposite party is a debtor to the petitioners. Petitioners have also pleaded pendency of a civil suit brought by petitioner no. 1 against the opposite party in the Court of learned Civil Judge (Senior Division) at Panvel in which the opposite party filed written statement. I refrain myself from entering into any discussion here about the subject matter of pending civil suit between the parties. However, I am of the opinion that the pleaded claims of the petitioners may be disclosed by petitioners before the trial Court of the complaint case as their defence during trial. It is not the proper stage or manner to take up the matter of ascertaining the truth without recording evidence invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure, 1973.

On careful consideration I find no reason to quash the proceeding of the complaint case as prayed for. Therefore, the application under Section 482 of the Code of Criminal Procedure, 1973 is dismissed. No order as to costs is passed. Interim order, if any, stands vacated.

Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties or their advocates on record observing legal formalities.