G.Dharmarajan vs Jai Bhagwan

Harbans Singh Rai, J.

This is a petition for quashing of the complaint filed by the respondent in the Court of Judicial Magistrate, Narwana under section 420, Indian Penal Code, and the order of summoning of the petitioner by Judicial Magistrate Ist class, Narwana, dated September 19, 1987.

The facts leading to this petition are that the petitioner is partner of A. S. Gurusami Nadar firm, Theni, Tamil Nadu. The said firm had placed an order for purchase of eight, wagons of broken rice from the respondent on February 23, 1986. According to the petitioner, the broken rice supplied was found to be of different quality and, therefore, the petitioner''s firm could not take delivery. On knowing the petitioner firm''s reaction, the respondent had sent a representative who had held discussions with the petitioner firm on April 24, 1986. A compromise was entered into in which the parties agreed that the petitioner firm would, take three wagons load of broken rice sent by the respondent and the respondent will make their own arrangements to have the other five wagons load of broken rice. On these basis two wagons of broken rice were cleared by the petitioner firm and the price of the same was released. A copy of the said compromise which was reduced into writing was filed with the petition as Annexure P. 1.

The petitioner further states in his petition that the petitioner firm cleared two wagons of broken rice, but the third wagon of broken rice did not reach for a long time as the respondentfirm had despatched the same on February 26, 1986 itself. Since the wagon did not reach till May 31, 1986, the bankers had informed that they will be returning the Hundis. The petitionerfirm requested the bankers to retain the documents and Hundis at least for two more months. In spite of this, the bankers returned the Hundis on June 5, 1986. The petitionerfirm sent a telegram on May 16, 1986, to the respondent firm to the effect that the draft for weight shortage had not yet been received. As no information came from the respondentfirm, another telegram was sent on June 3, 1986. True extracts of the telegrams were attached with the petition was Annexures P. 2 and P. 3.

According to the petitioner, the abovesaid goods arrived on June 12, 1986, but the bank informed the petitionerfirm that the above bills of the Hundis were returned on June, 5 1986. A copy of the letter of the Bank was attached with the petition as Annexure P. 4.

The petitioner further alleges in his petition that it was found that the broken rice which had arrived had become moist and turned into cakes. The petitionerfirm informed of this to the brokers of the respondentfirm at Bangalore over telephone. The respondents broker come to Theni and met the petitioner. The petitioner informed him that on account of long delay of four months about 100 bags of broken rice had turned into cake and were in damaged condition, the petitioner firm was prepared to clear the same subject to claim against the Railways. Copies of the telegrams sent by the petitionerfirm as well as of the Station Master to this effect have been attached with the petition as Annexures P. 5 and P. 5/A. It is further stated in the petition that initially brokers agreed to this, but subsequently the respondentfirm had asked another firm to clear the consignment without the knowledge of the petitioner firm.

The petitioner brought all these facts to the notice of the respondent firm by letter dated July 1, 1986.

It is further stated in the petition that after about one year of this, the respondent filed a complaint in the Court of Judicial Magistrate, Narwana, against the petitioner for not accepting the eight wagons of broken rice and the Magistrate on that complaint had issued the summoning order and the petitioner has prayed for quashing of the complaint and the summoning order in this petition.

The main contention of the learned counsel for the petitioner is that the matter is of purely civil nature and perusal of the complaint shows that it does not disclose commission of any offence and all the crucial and material facts have been suppressed by the respondent in the complaint and the complaint amounts to abuse of process of the Court.

Notice of this petition was issued to the respondent. No reply by way or affidavit was filed by the respondent.

I have heard the learned counsel for the parties and gone through the documents.

Jai Bhagwan respondent filed a complaint on July 14, 1987. The complaint reads as under:

"Sir,

The following complaint is submitted :

That the aforesaid firm of the complainant deals in the sale and purchase of foodgrains and commission agency at Dhamtan Sahib and another firm of the complainant which is a sister concern of the other firm is at Narwana The telegraphic address of the same is "Jai Bhagwan." Accused of set No. 1 run a business at Theni while the accused of set No. 2 is a commission agent belonging to Bangalore.

That on 2321986 accused of set No. 2 visited Narwana as agent of accused of set No. 1 and entered into an agreement with the firm of the complainant at Dhamtan Sahi purchase 10 wagons load of broken rice at commission of ten rupees perquital and assured the payment of the cost of the consignment and commission at the rate of ten rupees per quintal immediately on arrival of the consignment.

That relying upon this assurance/temptation of the main accused, the complainant despatched 8 wagon loads of rice to accused of set No. 1 and sent the bills on 2821986 and 10386, but the principal accused did not get the aforesaid wagons released on account of a big depression in the market. In fact, the main accused (Mulzman sadar) were hand in glove with each other from the very beginning and had intention to deceive and make illegal profit from the very outset. They wanted to make illegal profits by getting the consignment released in the event of rise in the prices and proposed not to get the consignment released and cause loss to the complainant in the event of a fall in the price.

That at this stage the complainant sent his representative and accountant (munim) Sat Pal to Theni where he had a talk with all the accused, The accused pressed Sat Pal and took a decision to got three wagons of rice released on 24486 and said that the complainant should take care of the remaining wagons. But the accused got only two wagons released and refused to get the third wagon released. Whereupon the complaint had to sell six wagons himself at a reduced price and he suffered a loss of rupees one lac approximately as a result thereof.

That the aforesaid conduct of the accused falls within the mischief of the aforequoted section. The entire correspondence between the complainant and the accused, telegrams, copy of the letter dated 24486 and letter of the accused dated 23286 regarding purchase of the goods are annexed with the complaint. Since the consignment was sent to the accused from of the complainant at Dhamtan Sahib this Hon''ble Court has the jurisdiction to try.

That the complaint is stamped in accordance with law.

It is, therefore, prayed that the complaint be entertained and accused be dealt with sternly."

A perusal of the complaint will show that this case is one of those cases when if all the allegations in the complainant are accepted it may constitute a civil wrong but the ingredients. of a criminal offence are wanting. The complaint mainly talks of breach of contract and there is no element present which may show that the accused (petitioner) had any intention to cheat. A large number of documents have been attached with the petition. Without going into their details, it is suffice to mention that the respondent has not challenged their authenticity. A combined reading of these documents and the complaint clearly gives the impression that a civil wrong is being given the colour of a criminal offence with the obvious motive of getting premium in the civil dispute. The petitioner is a resident of Tamil Nadu and his firm is operating in that State and he has been summoned in a complaint filed at Narwana (Haryana) obviously to get an advantageous compromise in the Civil dispute.

As the complaint does not disclosed any criminal offence, the summoning order passed by the learned Magistrate is not warranted by law. The whole process is abuse of process of Court and has been brought into play to serve an ulterior motive i.e. to get premium in the civil dispute. Consequently, the complaint dated July 14, 1987, and the summoning order. dated September 19, 1987 are hereby quashed.

JUDGMENT accordingly