Muni Lal and Another vs Chhagan

N.N. Sharma, J.—This revision is directed against the order dated 7-5-80 of Chief Judicial Magistrate Jhansi summoning the revisionists u/s 420 of Indian Penal Code in case No. 3810 of 79.

It appears that Chhagan Lal complainant filed a complaint in the court of Chief Judicial Magistrate Jhansi on 21-12-79 under Sections 420/34 of Indian Penal Code . There are three accused in that complaint. Revisionists who are father and son are partners who carry their business under the style M/s. Kapoor Chand and Company, 44A-Adi Narain Temple Street, Bangalore. Accused No. 3 Sri R.D. Gupta who is not a revisionist before me carries his business as partner of M/s. Sri Krishna, Clive Road Bombay.

Complainant is partner of M/s. Kirshna Dal Mill, Grain Merchant and Commission Agency, Subhashganj, P.S. Kotwali, Jhansi. It is alleged that in the month of August 79 complainant got gram Dal prepared in his mill for Bangalore market and booked one wagon of gram Dal on 9-8-71 from Jhansi to Bangalore city to be sold in the open market at Bangalore. Complainant had two Railway Receipts Nos. 10B707265 and 1D707266 with Invoice Nos. 42 and 43 about two wagons specified in the complaint. Total weight of gram Dal was 239 quintals.

Revisionist got the information of this gram Dal which had been consigned to Bangalore by complainant and with dishonest intention they represented complainant through accused No. 3 on 23rd August 79, that the revisionists were ready to purchase above gram Dal at the rate of 263 per quintal and to pay other expenses of conveyance. Accused Nos. 1 and 2 (revisionists) also made the complainant believe that the price of the above goods would be paid by them through Hundi Bilti which was to be sent by complainant and was to be honoured by revisionists. Complainant sent Bill No. 125 dated 23-8-79 for Rs. 62, 927/- to revisionists with a copy to accused No. 3 through Bank and the Railway Receipt was also transferred by the complainant in favour of accused Nos. 1 and 2 by the time the goods reached Bangalore. The revisionists had already sold their goods and so the market rate came down. Revisionists sent a false telegram that the quality of Dal was inferior and Hundi was returned. Thus it was evident that accused wrongly sent the telegram without getting the goods released from Railway complaining about the inferior quality of goods.

Complainant through his man got the Dal released after paying demurrage and it was sold in Commission Agency of M/s. Haji Abdul Latif Tayab of Bangalore at a lower rate prevailing in Bangalore market and thereby complainant sustained a loss of Rs. 15000/-.

Thus the complainant had been cheated by the revisionists who had no intention to purchase the goods of the complainant and by their design simply held up the goods of complainant so that market rate of Bangalore may not go low.

A notice was also given by complainant to revisionists through his counsel but the revisionists did not reply. So there was a prayer for conviction of accused u/s 420/34 Indian Penal Code . This complaint is dated 21-12-79.

In support of this complaint there was statement of Chhagan Lal recorded on 26-2-80 and Jagdish Chandra their employee recorded u/s 202 of Code of Criminal Procedure dated 11-4-80.

Revisionists filed an application u/s 482 aswell as preferred a revision u/s 397 of Code of Criminal Procedure emphatically repudiating all the allegations. In affidavit filed by Sri Tileshwar Nath it was alleged that the revisionists had absolutely no connection with the aforesaid transaction; all these allegations made in the complaint were simply false to defame the firm of revisionists which has high reputation ; they never entered into any transaction with complainant through accused No. 3 ; no cause of action arose within Jhansi district; the proceedings, if any, were cognizable by a Civil Court and revisionists have been dragged to criminal court to exercise pressure on them which is simply abuse of the procees of court.

I have heard learned Counsel for parties and perused the record. It is obvious that at the stage of summoning the accused learned Magistrate could have simply focussed his attention only to the evidence on record to determine as to whether there was a prima facie case against the accused made out by allegations of complainant and his witness to constitute an offence punishable u/s 420 Indian Penal Code .

A preliminary objection was raised before me on behalf of Respondents on the ground that accused No. 3 has not been impleaded in this case and so no revision could have lain.

A mere look at Section 397 of the Code of Criminal Procedure shall go to disclose that revisional jurisdiction can be exercised by the court itself or at the request of any person who may invoke the power of the court. Similarly the inherent powers of this Court can be invoked by any person. The mere fact that accused No. 3 who was never admitted by revisionists to be their agent has not been impleaded in this proceeding cannot operate as a bar in the way of revisionists from seeking redress from this Court so this objection is repelled.

The contention put forward on behalf of revisionists was that Chief Judicial Magistrate Jhansi had no jurisdiction to take congnizance of the offence. In this connection reliance was placed upon Section 182(1) of the Code of Criminal Procedure which reads as below:

Offences committed by Letters etc. (1) Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any court within whose local jurisdiction such letters or messages were sent or were received ; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a court within whose local jurisidiction the property was delivered by the person deceived or was received by the accused person.

A look at the complaint and the evidence adduced in support thereof by complainant and his witness shall go to disclose that there was no representation or inducement made by revisionists themselves. It is alleged that some representation was made by Sri R.D. Gupta who has his office in Bombay on behalf of complainant. These allegations have been denied by revisionists. It appears that the goods had already been despatched from Jhansi for Bangalore on 9-8-71. These goods had not been despatched at the request of any accused but had been consigned by complainant himself to be sold in the open market at Bangalore. These goods were held up at Bangalore where the alleged loss of Rs. 15000/- was sustained as accused No. 3 offered to be a customer of the gram pulse on behalf of revisionists. The goods were also disposed of by complianant in Bangalore through the Commission agent of M/s. Haji Abdul Latif Tayab. Thus it is obivous that no part of the offence arose within the jurisdiction of Jhansi district.

Learned Counsel for complianant referred to State of U.P. Vs. Joti Prasad, where it was laid:

A fraudulent representation within the meaning of Section 420 may be made directly or indirectly. A fraudulent representation got made through a person acting as an agent for the accused amounts to fraudulent representation by and on behalf of the accused.

However, in the instant case there was no evidence on record to show that accused No. 3 was an agent of revisionists or had any authority to make any representation on behalf of revisionists or actually made any representation on behalf of revisionists. The date, place and particulars of that representation were not detailed in the complaint or in the evidence u/s 200 and 202 of Code of Criminal Procedure. In Subbi Mal Rudra v. Addl. Distt. Magistrate 1970 AWR 647accused was working as an agent of a company situated at Allahabad for running a book stall at Gohati. The alleged acts of entrustment, misappropriation and illegal conversion were committed by accused at Gohati. There was nothing in First Information Report lodged at Allahabad to show that the alleged acts were committed at Allahabad. On these facts it was held that the court at Allahabad had no jurisdiction to take cognizance of the offence u/s 409 of Indian Penal Code . So this point prevails and it is held that Chief Judicial Magistrate Jhansi had no jurisdiction to entertain this complaint against any accused and the proceedings were simply illegal for want of jurisdiction.

Section 420 of Indian Penal Code has two main ingredients:

Dishonest inducement by the accused ; and

delivery of property through that dishonest inducement.

In the instant case a mere casual look at the complaint and the aforesaid evidence shows that no respresentation or inducement was made by revisionists at any time in Jhansi to the complinant. No delivery of property took place on account of any representation made by revisionists who are not (?) by any representation of accused.

The wagons of the gram pulse had already been despatched from Jhansi for Bangalore on 9-8-71 when none of the accused was picture ; the goods remained throughout in possession of complainant and his agent and were sold at his instance by his employee Jagdish Chandra. There is nothing on record to show that Jagdish Chandra took the delivery of the Dal from the revisionists ; there is nothing on record to show that the Dal was ever released by Railway in favour of revisionists. Under these circumstances it is not possible to come to the conclusion that on account of any deception practised by revisionists at some unknown time subsequent to 9-8-71 revisionists came in possession of the Dal of complainant for which they never wanted to pay and subsequently this Dal was redelivered by them to Jagdish Chandra to be sold at Bangalore through Commission Agency of Abdul Latif Tayab Ali. Thus by no stretch of imagination an offence u/s 420 Indian Penal Code was made out. Even if it were to be assumed for the sake of argument that some telegram had been sent by revisionists or any one else alleging that pulse of complainant to be of inferior quality or the fact that Railway Receipt and Hundis were drawn by complainant in the name of revisionists cannot satisfy the requirements of Section 420 Indian Penal Code .

On behalf of Respondent it was pointed out that some evidence can be filed at a subsequent stage. However, there is no mention of such evidence by complainant or his witness in their statements. On behalf of revisionists it was successfully aruged before me that revisionists who are residents of Bangalore were dragged to Jhansi with an ulterior motive although there was not a title of evidence to connect them with this transaction. Even if some loss was sustained by complainant at Bangalore an action could have lain in Civil Courts at Bangalore. No particulars of such loss appear from the evidence on record. It was open to the complainant to claim such loss through a Civil suit. He simply adopted a short circuit course without payment of any court fees etc. by putting pressure upon the accused to pay the amount of loss on account of such prosecution. This device clearly amounted to an abuse of process of court and this Court has inherent power to quash the proceedings. This contention seems weighty and is well covered by D.N. Senapati v. Agarwal Trading Co. 1980 LLJ 132 where it was observed:

Where the dispute disclosed by complaint is of a civil nature the prosecution of that dispute in a criminal court would amount to an abuse of the process of court and the High Court is perfectly justified in exercising jurisdiction u/s 482 to prevent that abuse.

It was further observed:

Where the allegations of first information report or complaint even if they are taken at their face value did not constitute the offence complained of the High Court has every jurisdiction to quash the proceedings of the case under its inherent powers guaranteed u/s 482 Code of Criminal Procedure as the continuance of those proceedings would obviously amount to an abuse of process of court.

On behalf of Respondents it was alleged that in cases where a party had two remedies viz. civil and criminal it was open to a party to pursue any of them. This is correct but where a civil matter is dragged to a criminal court with an ulterior motive this Court has to interfere in the exercise of its inherent powers also.

In the result this revision is allowed. The proceedings in the court of Chief Judicial Magistrate Jhansi against the revisionists are quahsed. Let the record be sent to court below forthwith. Revision allowed.