K.M. Wahi and Others vs Madras Aluminium Company Ltd.

N. Krishnaswamy Reddy, J.—This petition has been filed u/s 561-A, Criminal Procedure Code, to quash the charges framed against the

petitioners in C.C.No. 487 of 1967 on the file of the Additional First Class Magistrate, Coimbatore.

There are no merits in this petition and the same has to be dismissed. On this view, it will not be necessary to set out in detail either the facts of

the case or the discussion in respect of them.

Sri V. T. Rangaswami Iyengar, the learned Counsel for the petitioners has requested that in case the petition has to be dismissed, the matter

need not be discussed in detail lest any observation made in the order might cause embarrassment to the parties concerned in the course of the

trial. The petitioners have invoked the inherent jurisdiction of this Court to quash the proceedings pending before the lower Court.

The Supreme Court has clearly stated in R.P. Kapur Vs. The State of Punjab, , that the inherent jurisdiction of the High Court can be exercised

in quashing proceedings in three categories of cases, namely, (1) where it manifestly appears that there is a legal'' bar against the institution of the

criminal proceeding in respect of the offence alleged; (2) where the allegations in the First Information Report or the complaint do not constitute the

offence alleged; and (3) even where the allegations made against the accused person do constitute an offence alleged but there is either no legal

evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. Applying this principle, it cannot

be said that the charges framed by the Magistrate in the present case falls under any one of the categories.

The petitioners are accused 1, 2, 3, 4 and 6 in C.C.No. 487 of 1967 on the file of the Additional First Class Magistrate, Coimbatore. The

Madras Aluminium Company Ltd., Coimbatore, filed a complaint against these petitioners and two others alleging that they had conspired to cheat

the complainant to the tune of Rs. 3 1/4 lakhs and odd on false representation that they would secure an Excavator and its accessories from a

foreign country by placing an order with a concern there and clearing the consignment at the Madras Harbour, which they failed to do. Petitioners

1 and 2 are two of the directors. The third petitioner is the General Sales Manager. The fourth petitioner is the Accountant. The fifth petitioner is

the Secretary.

The complainant examined P.W. I, the Chief Accountant of the company and three other witnesses who are the representatives of the various

banks and who gave evidence in respect of certain documents. The learned Additional First Class Magistrate after hearing the evidence of the

prosecution witnesses adduced on behalf of the prosecution, framed three charges against all the petitioners, namely, (I) u/s 120-B read with

Section 420, Indian Penal Code, (2) u/s 420, Indian Penal Code, and (3) u/s 409, Indian Penal Code.

The evidence of the prosecution witnesses and other documents filed, before the charges were framed, disclosed briefly these facts : The

complainant is a public limited company with a capital of R. 6 crores with its factory at Mettur and registered office at Coimbatore and an office at

Madras. It required for its expansion Skoda Excavator and accessories from Czechoslovakia in Europe. The complainant company obtained

licence under Import Trade Control from the Government of India for importing the said machinery after having had negotiations with the United

Provinces Commercial Corporation (P.) Ltd., Calcutta, with which the petitioners are concerned in one capacity or the other. The complainant

company also obtained a letter of authority on 29th April, 1966, permitting the petitioners'' company to import the said machinery, to open a letter

of credit and make remittances of foreign exchange on behalf of the complainant. The letter of authority and other documents were delivered to the

petitioners'' company on 23rd July, 1966.

In August, 1966 the Corporation stated that consequent on devaluation of the rupee the price to be paid has risen. The complainant agreed to it

and assured to pay the price of Rs. 3,42,462. In October, 1966, the petitioners'' company reported that the machinery had arrived and required

the complainant to pay to enable the documents to be got with a view to clear the said goods. The complainant received a communication from

accused-4 K. L. Srivatsava, the Accountant of the petitioners'' company asking the complainant to pay the bill immediately stating that the

documents have been negotiated through their banks. Believing the representation to be true, the complainant paid the amount of Rs. 3,26,168-47

P. to the State Bank of India, Coimbatore expecting release of goods and documents of title. After payment, it was discovered that the Bill of

Lading on which the amount was paid was a mere copy and in the absence of the original, delivery could not be had. It is thus the case of the

complainant that the petitioners had deceived the complainant and misappropriated the money sent by the complainant. Further enquiry revealed

that a letter of credit has been opened with the Bank of Tokya, Ltd., Calcutta, and that the original Bill of Lading and connected documents are

with the said Bank and the petitioners had to pay the said Bank and get the original Bill of Lading and other documents. These facts would reveal

that though the petitioners had admittedly received Rs. 3 lakhs and odd from the complainant, they had not made arrangements to clear the goods

from the harbour and it also appears to be clear that the amount received by them was not paid to the Bank of Tokyo Ltd., Calcutta, with whom

the letter of credit has been opened in respect of the machinery,, Skoda Excavator and its accessories.

It is contended by the learned Counsel that the complainant has already taken civil action and that, therefore, the criminal proceedings would not

lie as the matter is of a civil nature. I cannot agree with this broad proposition. There is no legal bar for a person to take action against another by

instituting civil or criminal proceedings either simultaneously or one after the other. It is next contended by the learned Counsel that the two

charges, namely, u/s 420, Indian Penal Code and Section 409, Indian Penal Code, cannot co-exist as the ingredients of both the offences are so

distinct and different that a person cannot be charged with both the offences on the same facts. There is no substance in this contention. It is true

that a person cannot be convicted ultimately under both the charges. He can be convicted only of any one of the charges; but there cannot be a bar

for framing charges though they may appear to be inconsistent. Section 236, Criminal Procedure Code, is as follows:

If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the

accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be

charged in the alternative with having committed some one of the said offences.

After the trial, it is for the Magistrate to consider, which one of the offences, Section 420, Indian Penal Code or Section 409, Indian Penal

Code, is made out. I do not find any infirmity in the charges framed by the Additional First Class Magistrate, Coimbatore. The trial, therefore, will

proceed on the three charges framed by the lower Court.

The petition is dismissed.