Bharat Bhushan Mehra vs Birbal and others

H.K. Sandhu, J.

Bharat Bhushan Mehra petitioner is broker of yarn synthetic waste and fibre at Bombay. In the month of October 1988 he brought about an agreement between M/s Gopal Dass Jagat Ram Private Limited, Ludhiana respondent No. 1 and Mr. S.L. Daga of M/s Daga Fibre Private Limited respondent No. 2. As per this agreement, respondent No. 2 was to supply 400 MT of 100 per cent synthetic waste to respondent No. 1 and the supply was to be made before 31st December, 1988 with the stipulation that respondent No. 1 could extent the delivery period or could claim Rs. 2/ per kg. as buyers profit for that bargain in case the delivery was not made within the specified period. Respondent No. 2 could not supply the total quantity of the material according to the terms of the agreement. So respondent No. 1 extended period of supply of material upto 15.1.1989 vide letter dated 26.12.1988. A dispute arose between respondent No. 1 and respondent No. 2 with regard to the quality of the goods supplied and respondent No. 1 instituted a civil suit in the court of Senior Sub Judge, Ludharana for the recovery of Rs. 6,37,426.50 on account of profitcumdamages for nonsupply of the goods and he also claimed Rs. 66,92978 by was of interest. Subsequently respondent No. 1 filed a complaint against the petitioner as well as respondents No. 2 and 3 under Section 420/12OB Indian Penal Code in the court of Chief Judicial Magistrate, Ludhiana and the petitioner and respondents No. 2 and 3 were summoned to stand trial vide order dated 15.1.1991. The petitioner filed the present petition under Section 482 of the Criminal Procedure Code for quashing the complaint filed by respondent No. 1 Annexure P4 and also subsequent proceedings of summoning him vide order annexure P.5.

It was averred in the petition that no offence was made out under Section 420/120B Indian Penal Code on the basis of the allegations made in the complaint. The transaction was of civil nature and violation of the terms of the agreement created only a civil liability. Petitioner was imply a broker in the transaction and had lent his services to bring about a contract between respondents No. 1 and 2. He could not be burned with any liability civil or criminal. He had not deceived anyone and the dispute between respondents No. 1 and 2 was regarding recovery of damages. The petitioner was not to gain anything by entering into the alleged conspiracy or cheating. In fact he was to be benefited if respondent No. 2 had supplied the entire material to respondent No. 1 as he was to at a commisison of 25 paise per kilogram as mentioned in the contract.

Notice of this petition was given to respondent No. 1 but he refused service.

I have heard the learned counsel for the petitioner and have perused the record.

It was submitted on behalf of the petitioner that the petitioner was a broker of yarn and synthetic waste and his occupation was to bring about agreements between the buyers and the sellers. He brought a out one such agreement between respondents No. 1 and 2 copy of which was Annexure P1. As per terms of this agreement, the petitioner was to get a commisison from the supplier at the rate of 25 paise per kilogram. The goods were to be supplied by 31st December, 1988 and in case of failure to supply the goods within this period it was for the buyer to extend the delivery period or to claim Rs. 2/ per kilogram as his profit. Vide letter Annexure P2 the time for supply of the goods was extended upto 15.1.1989. When this letter was written only 20 per cent of the goods had been supplied. A dispute then arose between the parties and respondent No. 1 filed a suit for recovery of Rs. 7,04,35628 against respondent No. 2 being the profitscumdamages for nonsupply of goods and interest thereon. It was urged that the dispute was purely of civil nature and there was no question of any cheating or entering into a conspiracy to cheat on the part of the petitioner. Filing of complaint under these circumstances was just an abuse of the process of the court.

I have gone through the contents of complaint Annexure P4 instituted on December 21, 1990 and am of the view that allegation made in the complain even prima facie do not make out offences under Section 420 and 120B, Indian Penal Code. The only allegation against the petitioner is that the acted as a broker and brought about a contract for supply of yarn between respondents No. 1 and 2. It is made out that terms and conditions of the agreement were not complied with by respondent No. 2 and respondent No. 1 has already filed a suit claiming damages for violation of the terms of the agreement. By breach of contract between respondents No. 1 and 2, the petitioner lost his commission. He could not be a party to violation of the terms of the contract when he was to gain in case terms of the contract were complied with. The petitioner has produced copy of the plaint Annexure P3 to show that respondent No. 1 has filed a suit for recovery of damaged against respondent No . 2. The dispute between the parties is thus purely of civil nature and filing of the complaint in these circumstances was an abuse of the process of the court. In the case of Trilok Singh and others v. Satya Deo Tripathi, AIR 1979 SC 850 it was observed that where the dispute was purely of civil nature, initiation of criminal proceedings amounted to an abuse of the process of the court and deserved to be quashed.

For the reasons recorded above, I accept this petition and quash the complaint Annexure P4 as well as order summoning the petitioner Annexure P5.