B.M.Tandon vs Maharaj Kishan Raina

The petitioner has filed this application under Section 561A of the Cr. P. C. for quashing of the Proceedings titled ""Sh. Maharaj Kishan Raina

Vs. B. M. Tandon'' in a criminal complaint pending in the Court of City Magistrate Srinagar. An alternative prayer has been made for the transfer

of the said case from the court of the City Magistrate Srinagar to some other court of competent jurisdiction at Jammu, in the event the

proceedings are not quashed.

The respondent herein filed a complaint in the court of C. J. M., Srinagar wherein it was alleged by him that he was carrying on the business of

the manufacture of PVC cables in the Industrial Estate at Burzalla and for that purpose was importing material from outside the country. That on a

representation made by the petitioner at Srinagar, that he would collect the goods imported by the complainant and send the same to him at

Srinagar, the respondent gave an authority to him to collect the goods at the pert of receipt and despatch the same to him. The respondent gave

blank forms, duly signed by him, to enable the petitioner to receive the goods at the port which were subject matter of four import permits issued

by the Govt. of India. It is then alleged by the respondent in his complaint that if the accused had not represented that he would clear and receive

the goods and despatch the same to the respondent, he would not have given the signed blank froms and the authority to the petitioner. It is further

alleged in the complaint that the petitioner collected the goods covered by the import licences and did not send the same to the respondent and

retained the goods without any right to do so in breach of trust. On these averments the respondent had prayed that the petitioner be summoned

for the offences under section 406/420 of the R. P. C. and after enquiry be punished for the same offences.

After recording the preliminary evidence, warrants were issued against the petitioner on 22874. The petitioner was not served as he kept on

evading service on numerous occasions and the warrants issued for his production could not executed. The present petition for quashing of the

proceedings was filed on 15676, when the warrants had not been executed and the petitioner had not appeared even once before the trial court at

Srinagar.

Mr. H. L. Bhagotra, appearing for the petitioner submits that the contents of the complaint do not disclose the commission of any offence and

that in fact the respondent owned a sum of Rs. 21,000/ to the petitioner and when a demand was made for the payment of that amount a false and

frivolous complaint was lodged by him. It is also urged that the dispute between the parties is of a civil nature and that the criminal complaint has

been filed only to harras the petitioner and that the proceedings therefore are an abuse of process of the court. In the alternative Mr. Bhagotra has

prayed that the ease be transferred to a competent court at Jammu since the petitioner belongs to Jullunder and if the case is tried at Jammu it will

be to the convenience of the parties. Mr. Bhagotra further states that the petitioner is ready and willing to pay the experses of the witnesses of

complainant for their appearance at Jammu.

Mr. Puri appearing for the respondent has on the other hand urged that a bare reading of the complaint shows that the petitioner had committed

the offence alleged against him and that this court should not interfere at this preliminary stage. He has further submitted that the normal process of

a criminal trial should not be permitted to be cut short by this method.

I have given my anxious considerations to the respective contentions raised at the bar.

Sec. 426 of the R. P. C. reads as under:

Whether cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make alter or destroy the whole

or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be

punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine

To bring home a charge under this section it is important to bear in mind that the dishonest intention must exist at the time when the

representation is made. A perusal of the complaint shows that the complainant has not alleged any where that at the time, when the petitioner made

the representation at Srinagar, he did not have the intention to carry out the representation. It therefore, follows that from a reading of the complaint

it cannot be said that any offence under Section 420 of the R. P. C. is made out against the petitioner.

Moreover, the offeces under section 420 and 406 of the R. P. C. are mutally exclusive. Section 420 of the RPC postulates, that the goods have

been received by fraudulent means where as Sec. 406 PRC contemplates that goods have been entrusted on voluntary basis by the complainant. If

the goods were received fraudulently, then it would not follow that the goods had been entrusted voluntarily and vice versa. The offence under

Section 406/420 R. P. C. being mutually exclusive it is not permissible for a court to proceed under both the sections at one and the same time,

against an accused on the same set of facts.

Faced with this situation, Mr. Puri concedes that the complaint may proceed only in respect of an offence under Section 406 R. P. C. and that

he would not prosecute it for the offence under Section 420 R. P. C. I, therefore, hold that this complaint against the petitioner can be treated as

one only for and offence under section 406 R. P. C. and not one for the offence under Section 420 R. P. C also.

A careful reading of the complaint suggests that the petitioner was entrusted with an authority to receive goods on behalf of the respondent and

forward the same to him and while he did in fact receive goods on his behalf, he thereafter retained them and did not send them to the respondent

and deprived the respondent of their use. Whether or not the allegations in the complaint are true, is not for this court to judge at this stage. This is

a matter for the trial court to judge on the basis of evidence. Proceedings under Sec. 561A of the Cr. P. C. cannot be permitted to circumvent a

normal criminal trial. Where the facts disclose the commission of an offence, the mere fact that on those facts civil liability can also be fastended

does not justify the arguments that here civil liability is disclosed a criminal proceedings can never be restored to in appropriate eases both

proceedings may be launched and persued. Prima facie the complaint does allege the commission of an offence under Section 406 R. P. C. by the

petitioner which justifies the normal procedure of a criminal trial to be gone into.

As a result of the above discussion I find that no ground to have been made out to quash the proceedings. It shall, course, be open to Mr.

Bhagotra to urge the question of jurisdiction or lack of it before the trial court which shall decide that question and I refrain from expressing any

opinion of that question.

So far as the plea for the transfer of the case is concerned I am not satisfied that any valid ground has been made out for the same either. The

apprehension of the petitioner that if he reports himself at Srinagar he may be involved in some other litigation, appears to be fenciful and without

any basis. The petitioner has not appeared at Srinagar at all and has successfully delayed the trial by more than three years. It appears that the

prayer for transfer of the case has also been made with a view to further delay the trial of the complaint. I am not satisfied that any ground has been

made out for the transfer of the case and 1, therefore, reject the prayer.

Except to the extent of quashing the proceedings under Section 420 R. P. C. this petition is dismissed.

The parties through their learned counsel are directed to appear before the trial court at Srinagar on 30121977. The trial court shall

expeditiously try this case for offence under Section 406 R. P. C. The file of the case be immediately sent back to the trial court.