Rattan Kumar Jindal vs Bhagwan Dass

V.K. Jhanji, J.

The present petition under Section 482, Cr.P.C. has been filed for quashing the complaint, Annexure P1 and order dated 12.1.1994 (Annexure P2) whereby petitioners have been ordered to be summoned by the Judicial Magistrate, Ludhiana under Sections 420/406/34 I.P.C.

In brief the facts are that petitioners No. 1 and 2 are partners of M/s. Jindal Auto Springs, a registered firm. Respondent Bhagwan Dass filed a complaint under Sections 420/406/34 I.P.C. on the allegations that petitioner No. 1 contacted the respondent at Ludhiana on 13.12.1992 on behalf of the firm and placed an order in the presence of Harbans Sharda and Mohinder Singh for the supply of different types of nuts and bolts. According to averments contained in the complaint, respondent sent the goods worth Rs. 1,70,434,/49p on 30.1.1993 to the petitioners through road transport, On 4.3.1993, goods worth Rs. 38,254/36p were sent through road transport. Thereafter, various reminders were sent to the petitioners for making payment for the goods, but the same was not made. Hence, it was prayed that petitioners have committed offence under Sections 406/420/34 IPC. In order to confer jurisdiction upon the Court at Ludhiana, it has been averred in the complaint that since the business activities were being carried out at Ludhiana, order of supply was made at Ludhiana and payment of the same was received at Ludhiana, the Court at Ludhiana had the jurisdiction to try the complaint. Quashing of the complaint has been sought on the ground that petitioner No. 1 placed an order at Nagpur on Shiv Shakti Engineers (India) which was represented by Harbans, Sharda. It has further been averred in the petition that the petitioners have made payments of Rs. 36729/31p, 25,000/, 25,000/, 25,000/, 35,000/, 12026/85p and 50,000/ vide cheques/draft dated 15.2.1993, 15.2.1993, 18.6.1993, 31.7.1993, 4.8.1993, 12.8.1993 and 20.2.1993 respectively, to M/s. Shiv Shakti Engineers/Harbans Sharda. One cheque dated 31.5.1993 for Rs. 47026/85P sent by the petitioners was dishonoured. Petitioners have annexed with the petitioner alleged letters, Annexures P3 to P9 and notice, Annexure P10, sent by the complainant, to show that the dispute between the parties is of civil nature and the criminal complaint has been filed in order to harass and pressurize the petitioners.

In answer to the petition, respondent has filed reply in which it has been stated that petitioner No. 1 used to visit Ludhiana regularly to get supplies to goods from other parties and on one such occasion, i.e. on 31.12.1992, he came to the respondent alongwith Harbans Sharda and placed an order for the supply of different types of nuts and bolts, assuring the respondent that their firm is a sound party having a good financial reputation. Respondent was also told by Harbans Singh that he supplies material to the firm of the petitioners and, therefore, knows them well. It is on this account that the respondent supplied goods for Rs. 1,70,43449P and thereafter, remaining goods for Rs. 38,254.36P, but inspite of respondent having written to the petitioners continuously since 30.1.1993 for payment, neither any money nor any reply was received by him.

After hearing learned counsel for the parties at length and on carefully going through the various documents attached to the petition, I am of the view that the petition deserves to succeed. It appears from a reading of various documents placed on record, that M/s Jindal Auto Springs, i.e. firm of the petitioners placed order with Harbans Sharda and payments of the goods have been made to M/s Shiv Shakti Engineers, the firm belonging to Harbans Sharda. Respondent is alleging that goods were supplied by him at the asking of Harbans Sharda and respondent alone was entitled to the payment. The dispute raised in the complaint is purely of civil nature as would be clear from notice which was admittedly served upon the petitioners by the counsel on the instructions and on behalf of respondent. In the said notice dated 4.11.1993, it has been stated thus :

"1. That my clients are dealing in the manufacture and supply of all kinds of Nuts and Bolts and Motor parties and in the due course of their business, they made supplies to you to the tune of Rs. 2,08,958.85, the details of which are as under :

i) Bill No. 6566 dt. 30.1.93 Rs. 1,70,434.49

ii) Bill No. 69 dt. 4.3.93 Rs. 38,524.36

Rs. 2,08,958.85

The above said goods were supplied against your confirmed orders and on your instructions, the same were despatched to you per road transport vide CR No. 000308 dated 30.1.1993 and GR No. 3282648 dated 4.3.1993 of Delhi, M.P., Maharashtra Transport Co. Delhi and the said goods have already been received by you.

That you have neither made the payment of the abovesaid amount nor have sent the FormC declarations against the abovesaid bills despite the repeated telephonic requests and reminders sent to you by my clients on 4.3.1993, 15.3.1993, 22.4.1993, 12.5.1993, 31.7.1993 and registered AD reminder dated 24.9.1993. Even despite your verbal promises made by you with my client on the trunks, you have not paid even a single penny out of the abovesaid amount."

A reading of notice, Annexure P10, which was served upon the petitioners much before filing of the complaint, would show that the goods were supplied and payment was demanded in due course of business. If the allegations made in the complaint are read in the light of notice, they merely amount to breach of contract. There is nothing in the notice to show that the petitioners had dishonest or fraudulent intention at the time the goods were supplied or they had induced the respondent to part with the goods. Moreover, the questions as to whether order was placed on the respondent or with Harbans Sharda and whether payment in respect of goods supplied was required to be made to Harbans Sharda or to the respondent, can be determined only by Civil Court. The judgment in Om Parkash and another v. Punjab State and another, 1992(1) RCR 195, cited by counsel for the respondent, is of no help to him as in that case, accused therein had promised to make payment of previous amount and current amount if the goods were supplied to them for the third time. However, this is not the position in the present case.

Consequently, this petition shall stand allowed and order dated 12.1.1994 (Annexure P2) shall stand quashed. However, it shall be open to the parties to get the matter settled through Civil Court. Any observation made herein shall not be construed to be an expression on the merits of the case, which the parties may choose to get settled before Civil Court.