Bhagwati Singh vs Gopal Bhushan

A.P. Chowdhri, J.

This is a petition under section 482 of the Criminal Procedure Code (hereinafter referred to as the Code) for quashing complaint Annexure P. 2, summoning order Annexure P. 1 and all subsequent proceedings based on the same.

Briefly stated, the material facts are that the respondent is running a Hosiery Emporium at Ludhiana. Petitioner No. 1 is running a garment shop at Chandigarh. The respondent filed a complaint Annexure P. 3, under sections 384 and 506 of the Indian Penal Code against Bhagwati Singh petitioner No. 1 and his wife Suit Joginder Kaur. The petition was dismissed under section 203 of the Code by the Judicial Magistrate 1st Class, Ludhiana, on 1371988. The complainant filed a revision against the order which was dismissed by the learned Additional Sessions Judge by his order dated 1111989 Annexure P. 4. The ground for dismissal both by the learned Magistrate as well as the revisional Court was that the facts disclosed in the complaint did not confer territorial jurisdiction on the Courts at Ludhiana.

The second round of litigation started with the filing of the second complaint Annexure P. 2. After recording the preliminary evidence, learned Judicial Magistrate Ist Class passed the summoning order dated 911989, Annexure P. 1. Aggrieved by the order, the petitioners have filed this petition.

The contention of learned counsel for the petitioner is that except for the addition of section 420 of the Indian Penal Code the second complaint was based on the same facts as the first complaint. Reference to section 420 of the Indian Penal Code had been made in order to circumvent the order passed on the earlier complaint which was dismissed by the learned Magistrate and his decision was affirmed in revision by the learned Additional Session Judge. It was also argued that the facts of the case did not disclose any offence under section 420 of the Indian Penal Code with the result that the remaining facts related to the alleged offence at Chandigarh and the Courts at Ludhiana had no territorial jurisdiction. JUDGMENT Annexure P. 1 shows that the respondent had been dealing with the petitioners in hosiery goods and he supplied goods worth Rs. 35,273.85 against bills A to F. The petitioners did not pay the price but promised to make the payment at the time when they entered into a later transaction. The accused thereafter visited Ludhiana in July to October 1987, but instead of clearing the outstanding amount repeated the promise to make the payment on the next visit. The respondent got sent a notice through his lawyer to which reply was sent by the petitioner No. 1 taking the plea that the goods were in a damaged condition and had been returned and there was thus no question of making payment in that behalf.

The primary question for consideration is whether an offence under section 420 of the Indian Penal Code was disclosed by the facts and circumstances of the case or not. In this connection it is not disputed by the learned counsel for the petitioners that on the averment made in the complaint Annexure P 2 the Criminal Court at Ludhiana had jurisdiction in view of the provisions of section 182 of the Code of Criminal Procedure. The petitioners are stated to have placed the order during their personal visit at Ludhiana and the case would prima facie be covered within the provisions of section 182 of the Criminal Procedure Code. In fact, in para 5 of the petition, it was stated that the allegations had been so worded by the complainant in the present complaint as to confer territorial jurisdiction on Ludhiana Courts. What is contended by the learned counsel, however, is that the allegations do not disclose an offence under section 420 of the Indian Penal Code and dispute regarding payment of one consignment is of purely a civil nature. It is settled law that there need not be any positive evidence of dishonest intention. The complainant can succeed by showing facts and circumstances that the requisite dishonest intention existed at the time of the alleged dishonest act. Inter alia, such an intention can be shown by the subsequent conduct of the accused. It will be prejudging the case if this court were to undertake an enquiry whether the facts made out justified the inference of the requisite intention or not. It is every day experience that in most cases under section 420 of Indian Penal Code the defence put forward is that the dispute was purely of a civil nature and resort to proceedings under the Criminal Procedure Code was an abuse of the process of the Court. It is certainly open to the accused in the facts of a given case to show that the requisite dishonest intention could not be spelt out from the facts and circumstances of the case. I do not find the present case to be of that type. It will be for the Court to take into consideration. the relevant facts and circumstances and form an opinion on the question one way or the other. All that can be said is that if the allegations made in the complaint and referred to the preliminary evidence an accepted as true prima facie offence under section 420 of the Indian Penal is disclosed. Learned counsel for the petitioners relied on Chitranjan Mohan Vashisht v. Nirmal Singh, 1986(2) Recent Criminal Reports 556, i and Jagdish Rai v. The State of Punjab, 1987(2) Recent Criminal Reports 215 . in order to show that the facts did not disclose the necessary dishonest intention. Apart from the fact that in Chitranjan Mohan Vashisht''s case, (supra) the offence involved was under section 406 of the radian Penal Code, it is apparent that the matter has to be decided on a consideration of the facts and circumstances of each case and in such a situation there can hardly be any binding precedent. Learned counsel for the respondent cited Vipan Kumar Aggarwal v. Ved Parkash and another, 1985(1) Recent Criminal Reports 448 in which the view taken by the learned single Judge of this Court was that the facts alleged by the complainant disclosed the commission of an offence under section 420 of the Indian Penal Code and dismissed the petition under section 482 of the Criminal Procedure Code for quashing the complaint. As already observed, it will depend on the facts of each case and no rule of the thumb can be laid down in which circumstances the dispute shall be deemed to be purely of a civil nature and in which cases it will be deemed that a criminal offence had been committed. No doubt, the complainant got served a notice on the petitioners with regard to outstanding payment of the consignment in dispute, and the petitioners took the stand that the goods of the said consignment were found to be in damaged condition and had been returned. This by itself will not take the case out of the purview of criminal law because admittedly the facts involved gave both the rights to the complainant, namely civil right to recover the value of the goods as well as the criminal right to have the offender punished. His success or failure both in the civil suit as also the criminal complaint will, however depend on the facts which he is able to prove. It will be useful to ear in mind the observations of the Supreme Court in Pratibha Rani v. Suraj Kumar and another, 1985(1) Recent, Criminal Reports 539 to paragraph 21 of the report, it was observed as under. "There are a large number of cases, where criminal law and civil law can run side by side, The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person property or the State for which the accused on proof of the offence, is deprived of his liberty and in some cases even his fife. This does not however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import."

It was rightly pointed out by the learned counsel for the respondent that where the Code provides adequate remedy, the aggrieved person cannot ordinarily resort to section 482 of the Criminal Procedure Code. In the instant case, if the petitioners were aggrieved by the summoning order, it was open to them to have filed a revision against the said order in the Court of Sessions Judge. The petitioners have not been welladvised in rushing to this court for quashing the complaint and subsequent proceedings based on it.

For the reasons stated above, I find no merit in this petition. It is accordingly dismissed. The parties through their counsel are directed to appear in the trial court on 2281989 for further proceedings according to law.

The observations made in this order are intended only in the context of disposal of this petition. They shall not cause any prejudice to the petitioners, accused before the trial court, and it will be open to the trial court to take an independent view of the facts and circumstances canvassed before it.