Tufail Mohammad Malik vs Mahadev Singh Shekhawat

Harmohinder Kaur Sandhu, J.

The present petition has been filed under Section 482, Criminal Procedure Code for quashing the complaint dated 17.12.1991 filed by the respondent and order dated 7.4.1992 passed by Judicial Magistrate 1st Class, Ludhiana, whereby the petitioner was summoned to face trial in that complaint for an offence under Section 406, Indian Penal Code. The brief facts necessary for the decision of this petition are that M/s. Deepak Spinners Limited manufactured acrylic yarn and polyster viscose yarn having its factory at Baddi, District Solan and its office at Daresi Road, Ludhiana, to deal with the yarn of that unit. The company had godowns near Samrala Chowk and complainant Mahadev Singh was the in charge of Ludhiana Branch. He dealt with the product of the Company i.e. received the yarn from the unit and gave it in the market for doubling it. The petitioner was running a unit under the name and style of Malik Textile Private Limited for doing the job work of doubling the yarn and had a factory in Malerkotla. He was the Managing Director and his three sons were the Directors. He approached the complainant in Ludhiana office and offered to do the work after improving the quantity of the job work and further agreed to return the yarn within a period of three weeks of the receipt of the same at Ludhiana. He also agreed to return the goods at Ludhiana. From 2.7.1991 to 24.7.1991 the yarn as per details given in para No. 4 of the complaint was entrusted to the petitioner for doing the job work and out of the same two consignments of finished yarn weighing about 57 tons were returned. The balance yarn weighing 13,701.2 kilograms was not returned by the petitioner and the same was embezzled with mala fide intention to deprive the complaintantcompany of the huge amount and the costs of the goods. The goods were sent to the petitioner through public carrier as agreed upon earlier and the receipt of the goods was duly acknowledged by Malik Textiles after sending the challans.

In support of the allegations in the complaint the complainant made his own statement and produced challans. The trial Court found that a prima facie case under Section 406, Indian Penal Code was made out against the accused and the accused was summoned, which led to the filing of the present petition.

It was averred in the petition that the complaint was to entrust 2000 kilograms of yarn per day for doubling for the period from 15.6.1991 to 30.11.1991 and the petitioner installed machines and employed labour so as to do the job work expeditiously as promised. The respondent failed to entrust the material according to the agreed quantity. The respondent was requested to send the requisite quantity of the yarn but to not effect and in this way the petitioner suffered loss and had to close down his mill for nonsupply of material as agreed. A demand for paying compensation for the loss suffered was raised vide letter dated 2.12.1991, copy of which was Annexure P1 and the respondent filed the complaint by way of counterblast. In fact all the goods received from the respondent had been returned after doing the job work. The dispute between the parties, if any, was of civil nature and criminal proceedings were wrongly initiated and those amounted to a clear abuse of the process of law.

In the return filed by the respondent the averments made in the petition were denied and it was submitted that on 24th November, 1991, a meeting was held between the parties regarding the dispute which arose for nonreturn of acrylic yarn and in that meeting it was admitted by the petitioner that 13,701.2 kilograms of yarn was still lying with him and now it could not be said that the yarn was returned earlier to that meeting. The proceedings of the meeting were reduced into writing and the copy of the minutes was Annexure R1. It was denied that there was an agreement regarding the quantity of yarn to be supplied daily to the petitioner.

In an additional affidavit filed by the petitioner it was reiterated that all the yarn had been returned to the respondent vide different receipts issued by the company and no material was lying with the petitioner. The minutes of the meeting Annexure R1 was a forged document as no meeting had taken place between the parties.

I have heard the counsel for the parties.

A perusal of the complaint attached to the petition shows that as per averments made therein acrylic yarn was handed over by the respondent to the petitioner for doing the job work of doubling the yarn at his factory in Malerkotla. Out of the total goods supplied to the petitioner finished yarn weighing 5.7 tonnes was returned and the petitioner refused to return the remaining yarn. Yarn weighing 137,01.2 kilograms, which was entrusted to the petitioner for doubling was embezzled and was misappropriated. The contention of the petitioner was that whole of the yearn received for doubling had been returned vide various receipts duly acknowledged by the respondent. The respondent, on the other hand, contended that in a meeting held between the parties this fact was admitted by the petitioner that the goods regarding which there was a dispute had not been returned. The allegations in the complaint prima facie made out an offence under Section 406 I.P.C. and the question whether all the yarn was returned by the petitioner to the respondent after doing the necessary job is to be determined by the trial Court after evidence is led. The main contention of the learned counsel for the petitioner was that the dispute between the parties was that of civil nature and criminal proceedings were wrongly initiated, but this contention is without any merit firstly because there is nothing on record to show that any civil suit is pending between the parties wherein the same matter is in issue and moreover a civil remedy does not bar a criminal remedy in each and every case. The two remedies are not mutually exclusive but are clearly coextensive and essentially differ in their contents and consequence. In Pratibha Rani v. Suraj Kumar and another, 1985(1) Recent Criminal Reports 539 it was observed that it is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. In the instant case the allegations made in the complaint taken on its face value made out a case under Sections 406 of I.P.C. against the petitioner and he was rightly summoned to face trial for the same. There is no merit in this petition, which is hereby dismissed.