V.V. Bedarkar, J.
1. This is an application requesting this Court to exercise its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') with an allegation that complainant Arjanbhai Ratnabhai Patel, who filed the First Information Report (F.I.R.) before the Junagadh Police against the present petitioner Dharamchand Gopiram and one driver Kishanlal for the offence punishable under Sections 407, 420 and 114 of the Indian Penal Code is either the abuse of process of the Court or there is a scope for substantial injustice and, therefore, the power should be exercised to secure the ends of justice.
2. Complaint was filed by complainant Arjanbhai with the allegation he had sent 550 tins of solvent refined oil to the petitioner who runs M/s. Jindal Enterprises at Delhi, through Delhi-Gujarat Freightways Transport Company of Rajkot. The complainant runs Jagdish Export Industries, at Junagadh. These goods were sent on 7-3-1980 by receipt no. 2415 of that Transport Company and information was sent to Sales-tax Officer that it was sent to the petitioner-accused as a commission agent of the complainant.
3. It is the allegation in the complaint that as no payment was received for 7 to 8 days, inquiries were made from one Sureshbhai Agrawal who works as Commission Agent at Rajkot and who had relations round about Delhi. On making inquiries from Delhi, Sureshbhai informed the complainant on the next day that he had a talk with the father-in-law of the petitioner-accused on phone no. 674754 at Delhi, and he was informed that a T.T. of Rs. 75, 000/-was sent to the State Bank of India, Junagadh from the State Bank of India, Karol Baug Branch on the name of Jagdish Export Industries. But on making inquiry at the State Bank of India at Junagadh, it was found that no such T.T. was received. Thereafter it was alleged that this information was conveyed to Sureshbhai at Rajkot. So, it is the allegation in the complaint that Sureshbhai sent his brother Ashok Kumar and his Munim Navalshanker Harishanker Jani to Delhi for making inquiries. After 2 to 3 days, they returned with an information that Dharamchand (present petitioner-accused) partner of M/s. Jindal Enterprises informed them that he had not received any goods. Therefore, on 22-3-1980, the complainant wired M/s. Jindal Enterprises asking them to make immediate payment of 550 tins of solvent refined oil sent to them and also to acknowledge receipt of telegram. But no reply was received. It is the case in the complaint that on the very next day, complainant received phone from Sureshbhai that his father had informed by phone from Gurgaon that the petitioner, owner of M/s. Jindal Enterprises, had gone to him (father of Sureshbhai) and had informed that he should inform Sureshbhai that he would make payment of Rs. 40, 000/-to Rs. 50, 000/-to the party and the party should give receipt for the entire goods. Thereafter, it is the case of the complainant that he informed Sureshbhai to demand a Pucca receipt of the goods received from the Delhi-Gujarat Freightways Transport Co. of Rajkot. But he was informed that though the goods were given over to M/s. Jindal Enterprises, Delhi, Dharamchand, owner of that Enterprises, did not give any Pucca receipt. This was informed to Sureshbhai via Shankerlal and in turn Sureshbhai informed the complainant about it. Thereafter, it is the allegation that attempts were made by Sureshbhai to contact the petitioner-accused at Delhi on phone, but he was not available and the father-in-law of petitioner Dharamchand informed that he did not know where the petitioner was.
4. On these allegations, complaint was filed that even though 550 tins of solvent refined oil worth Rs. 91,000/-were sent through driver Kishanlal of Kishangadh, District Ajmer to M/s. Jindal Enterprises, Delhi and its partner Dharamchand Gopiram, they have committed breach of trust with him pertaining to the aforesaid 550 tins of solvent refined oil worth Rs. 91,000/-and, therefore, both of them have committed criminal breach of trust and cheating and helped each other and, therefore, complaint was filed. This complaint was filed on 27-3-1980.
5. Thereafter, investigation was carried out by Junagadh Police and the petitioner was arrested at Delhi on 20-6-1980. He was produced before Shri S.M. Agrawal, Additional Chief Metropolitan Magistrate, New Delhi. The learned Magistrate at New Delhi ordered the release of the petitioner on interim bail in the amount of Rs. 20, 000/-with one surety in the like amount and directed the petitioner-accused to appear before the Court of the learned Judicial Magistrate, First Class, Junagadh on 2-7-1980. Accordingly, the petitioner appeared before the learned Magistrate at Junagadh and requested for releasing him on bail as per Ex. 3 of that Court, a copy of which is Annexure 'B' to this petition. The learned Magistrate kept the matter for hearing on 3-7-1980. On 3-7-1980 the learned Magistrate kept the petitioner in judicial custody mainly because he refused to grant police custody remand, and the learned Assistant Public Prosecutor informed the learned Magistrate that they wanted to go in revision. It is really curious that on this ground the learned Magistrate thought it fit to pass no orders on the bail application but to keep the petitioner in judicial custody. Thereafter, the bail-application of the petitioner was allowed and the petitioner was released on bail of Rs. 30,000/-with a condition that he should remain in Junagadh upto 5-4-1980 for interrogation by investigating officer and to co-operate in the investigation as far as possible and should not try to tamper with the witnesses, and thereafter, he was directed to remain present in the Court on every first day of the month.
6. Criminal Revision Application no. 53 of 1980 was filed by the State before the learned Sessions Judge, Junagadh on 3-7-1980, requesting the Court to set aside the order of the learned Magistrate refusing remand, and requested for the remand. This revision application was decided by the learned Additional Sessions Judge, Junagadh, on 4-7-1980, and the same was disallowed.
7. The original accused No. 2 Dharamchand has come to this Court with an allegation that the F.I.R. as filed by the complainant does not disclose any offence either of cheating or mis-appropriation and, there fore, this Court should exercise its inherent jurisdiction under Section 482 of the Code and quash the proceedings.
8. On behalf of the State, Mr. M.B. Shah, learned. Public Prosecutor, raised two-fold contentions against this petition. First is that this petition is not maintainable because the Police is at the investigation stage and no process is issued by the Court and, therefore, there is no abuse of the process of the Court. It is also his submission that even otherwise no case for passing any order to secure the ends of justice has arisen. On this point, his main plank of argument is that the Court should not interfere into the investigating agency of the Police and the investigation should be allowed to be completed. Secondly, it is his submission that even on facts, the F.I.R. does disclose at least an offence of criminal breach of trust either under Section 403 or Section 405 of the Indian Penal Code so far as the present petition is concerned and thirdly under Section 407 of the Indian Penal Code, so far as original accused no. 1 Kishanlal, the driver of the Transport Company is concerned. Of course, during the arguments before the learned Additional Sessions Judge and even here before me Mr. Bahl, learned Advocate for the petitioner-accused has conceded that the goods are received by the petitioner and, therefore, it is now doubtful whether the provisions of Section 407 of the Indian Penal Code would be available against original accused no. 1 Kishnalal. But he has not come before this Court and, therefore, it will be the jurisdiction either of the Police whether to file charge-sheet against him or not, or of the learned Magistrate to consider whether any process should be issued against him or not.
9. With respect to the first point, Mr. M.B. Shah, learned Public Prosecutor for the State, first referred me to the decision of the Supreme Court in Jehan Singh v. Delhi Administration : 1974CriLJ802 . While considering the question whether inherent jurisdiction of the High Court under Section 561-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code'), can be exercised to quash the proceedings at the stage of investigation by the Police, the Supreme Court came to the conclusion that it is a premature and incompetent stage. It was observed:
Where at the date of filing the petition under Section 561-A, no charge-sheet or a complaint has been laid down in Court and the matter is only at the stage of investigation by Police, the Court cannot, in exercise of its inherent jurisdiction under Section 561-A, interfere with the statutory powers of the Police to investigate into the alleged offence, and quash the proceedings. Even assuming that the allegations in the F.J.R. are correct and constitute an offence so as to remove the legal bar to institute proceedings in Court; the Court cannot at that stage appraise the evidence collected by the Police in their investigation.
It was, therefore, stated by the Supreme Court to be a stage where such an application was premature and incompetent.
10. Mr. Bahl on behalf of the petitioner submitted that he had no dispute with these principles enunciated by the Supreme Court, but his submission is that if the allegations in the F.I.R. disclose an offence which is assumed to be true, then this Court may not interfere. But can the observations of the Supreme Court be stretched to a case where the allegations in the complaint do not disclose an offence at all and, therefore, merely because the Police are investigating the case, which they should not, because there is no offence, would this Court permit the investigation to go even where no allegation disclosing the offence is made in the complaint? It is true that this poser put by Mr. Bahl was answered by the Supreme Court in R.P. Kapur v. State of Punjab : 1960CriLJ1239 . Therein, Gajendragadkar, J. (as he then was), speaking for the Court, observed as follows:
Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person.
In Jehan Singh's case (supra), the matter was at the investigation stage, but the Supreme Court in para 15 found that a plain reading of the F.I.R. would show that the allegations made in the F.I.R. did disclose an offence and the allegations did constitute an offence of theft and its abettment and, therefore, the Supreme Court did not interfere, R.P. Kapur's case : 1960CriLJ1239 (Supra), on which reliance was placed by the Supreme Court in Jehan Singh's case (Supra), was a case also of the F.I.R. filed by one M.L. Sethi before the Police. Because after the filing of the F.I.R. the Police did not take any proceeding, R.P. Kapur, who was accused in that case, moved the Court and also moved the High Court and the Supreme Court for quashing the investigation. So, that was also a stage where the investigation was in the hands of the Police and it had not completed, It should be noted that when the matter was heard by the Supreme Court, the Police had filed the report under Section 173 of the old Code before the Magistrate, but the learned Magistrate had not applied his mind to the merits of the said report. It was, therefore, considered by the Supreme Court that it may be assumed in favour of the appellant-accused that his request for the quashing of the proceeding was not at the present stage covered by any specific provisions of the old Code. But the Supreme Court considered that the High Court can exercise powers to quash the proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. But the Supreme Court further considered that there may be some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings, and one of the categories considered by the Supreme Court was that the cases where the allegations in the F. I R. or complaint, if they are taken at their face value and accepted in their entirety, do not constitute an offence, then in such cases no question of appreciating evidence arises. It is a matter merely of looking at the complaint or the F.I.R. to decide whether the offence alleged is disclosed or not, and in such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused person. When these observations are made, they also cover filing of the F.I.R. meaning thereby, that even though the investigation by the police might not have started or might not have progressed, but the sine qua non for exercising this jurisdiction is that the F.I.R. or complaint should not disclose any offence. The petition before the Supreme Court filed by R.P. Kapur (Supra) was dismissed because its contents disclosed the offence and, therefore, inherent jurisdiction was not exercised.
11. Mr. M.B. Shah also relied on the decision of the Supreme Court in Hazari Lal Gupta v. Rameshwar Prasad : 1972CriLJ298 . Therein it has been observed:
Interference with such investigation would be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with Cr. P.C.
It was also observed:.. In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code the High Court does not interfere with such investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.
To my mind, though these observations are made, they do not take out the observation of the Supreme Court that if no offence is disclosed in the F.I.R. the High Court can interfere even with the investigation under its inherent jurisdiction under Section 561-A of the old Code or Section 482 of the new Code. The Supreme Court in HazarilaVs case (supra) did not touch the point whether the High Court should or should not interfere in a case where no offence is disclosed in the allegations in the F.I.R. itself.
12. Mr. M.B. Shah put a very emphatic stress on the decision of the Supreme Court in State of Bihar v. I.A.C. Saldanna : 1980CriLJ98 . It is significant to note at this stage that the facts disclosed in that case are so startling that the course taken by the Supreme Court was the only course in such a case where total mis-use of the process of the Court or total abuse of the judicial machinery was being made by the persons having resource to influence the administration of the executive officers. The very beginning of the judgment starts with the caution as follows:
Reverence and anxiety to the same degree, if not more, to shoot at sight even a remote intrusion into the field preserved for judiciary must inform the judicial approach whenever assistance of the judicial machinery is sought for an unwarranted encroachment into the field of activity reserved for the other branch of Government, more so, when extraordinary power conferred on the High Court to issue prerogative writ in aid of justice is invoked to thwart a possible detection of a suspected offence. How dangerous it is to rush in where one should be wary to tread is amply demonstrated by the facts revealed in these two appeals.
Without entering into the details of the case, it would be worthwhile to say that some important officials of Tata Iron and Steel Co. Ltd. ('TISCO') were involved in fraud pertaining to pearl coke without proper booking against the provisions of rules. One investigating officer thought it fit to proceed against them. Pressure was brought on that officer. Influence was laid at the highest level and that officer was transferred. The other person who came, wanted to withdraw the cases. The matter had a chequered history and ultimately when the High Court interfered with the investigation of the case against the accused, which proceeded in spite of the resourceful attempts available to the accused, the Supreme Court considered that the action of the High Court was not justified on the peculiar facts of that case. But Mr. M.B. Shah wanted to submit that this judgment clearly shows that the High Court should not even tread in where the prosecuting agency is investigating and should not attempt to thwart the investigation at such a stage so as to demoralise them. In the aforesaid case, in para 25, the Supreme Court has observed as follows:
There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed, it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 17 (8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for offence proved to the satisfaction of the Court. There, is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate.
In order to support these observations, the Supreme Court relied on the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmad , to show that whatever the Supreme Court has observed has been recognised way back since that decision. The observations made by the Privy Council in that decision which are relied upon by the Supreme Court are as follows:
In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, and not until then,
After considering the aforesaid judgment of the Privy Council, the Supreme Court, in para 26 of its judgment observed: 'This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent 'trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.' On what Mr. M.B. Shah very much relied is that unless the accused can show mala fide on the part of the police in the investigation or in starting the investigation, this Court should not interfere. This argument was advanced on the strength of the observations made by the Supreme Court in para 27 referring to its decision in 5. N. Sharma v. Bipin Kumar Tiwari : 1970CriLJ764 . There it was observed by the Supreme Court:
It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.
After quoting those observations, the Supreme Court considered:
Not only such a case is not made out but the High Court by an utter misconception of its jurisdiction almost directed the Magistrate before whom the papers are pending to act in a manner as enjoined by the High Court. How the High Court has usurped the jurisdiction of the learned Magistrate, the following passage from the judgment of the High Court would be illustrative.
The passage from the judgment of the High Court was thereafter reproduced, with which we are not very much concerned. On these observations, it is the submission of Mr. M.B. Shah that the Supreme Court has clearly decided that when the police investigation is going on, the High Court should not interfere by exercising the extraordinary powers under Section 482 of the Code, because the jurisdiction of the judiciary and the executive are separate and one should not try to encroach upon the field of the other. In terms it is his submission that even if it is assumed for the sake of argument that the F.I.R. did not disclose any offence, as it is the jurisdiction of the Police to consider whether to investigate or not or to file a charge-sheet or not, or to make a report for 'A', B', or 'C', summary, everything should be left to the Police, i.e. the investigating agency, and the Court should not interfere at such a premature stage. I do not agree with Mr. Shah that the ratio of the decision of the Supreme Court in Saldanna's case (supra) is of such a slashing result. It merely cautions the Court not to interfere with the work of the investigating agency if it is proceeding on its legitimate path. In coming to this conclusion, the Supreme Court relied on the decision of the Privy Council in Khwaja Nazir Ahmad's case (supra). If a reference is made to that judgment, on page 22 at the end of para 2, the Privy Council has observed:.No doubt, if no cognizable offence is disclosed and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.
It was further observed that for this reason Newsam, J. may well have decided rightly in AIR 1938 Madras 129 (M.M.S.T. Chidambaram v. Shantnugam Pillai). But the Privy Council considered that the case before them was not such, meaning thereby, wherein neither a cognizable offence was disclosed nor any kind of offence was disclosed.
13. Of course, referring to AIR 1938 Madras 129, it is found that it was not a case of police investigation, but it was a case filed on a complaint for the offence punishable under Section 420 of the Indian Penal Code. It was a case where a post-dated cheque in payment of goods already received was sent and it was dishonoured. It was observed by the Madras High Court:
A post-dated cheque in payment of goods already received is a mere promise to pay on a further date and a broken promise is not a criminal offence, though it may amount in certain business relations to discreditable behaviour.
That was a case wherein question of quashing the proceedings on the strength of the complaint filed had arisen, and it was not a case of investigation by the Police. But the Privy Council in Khwaja Nazir Ahmad's case. (Supra) specifically observed that if no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the Police would have no authority to undertake any investigation. This necessarily implies that the Court would have jurisdiction under Section 482 of the Code to interfere even with the investigation if the F.I.R. on the strength of which the investigation is started does not disclose any offence. The Saldanna's case before the Supreme Court (supra) was not to, the effect that no offence was at all disclosed in the F.I.R. The Supreme Court has, in para 26, observed that the power of the Police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary. On the contrary, appallingly glaring injustice was found by the Supreme Court in the Order of the High Court which prompted the Supreme Court to make the following observations:
The High Court in exercise of the extraordinary jurisdiction commits a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. The High Court is clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete.
Here I do not condecend to the submission of Mr. Bahl that I should go through the evidence collected by the police and see if offence is made out. I have merely to look to the F.I.R. and see if prima facie any offence is disclosed.
14. In order to support his case, Mr. Bahl for the petitioner relied on the decision of the Supreme Court in Trilok Singh v. Satya Deo Tripathi : 1980CriLJ822 . Therein, the words of Section 482 of the Code 'To prevent abuse of the process of any Court' were considered. It was considered that if a truck is purchased under hire-purchase agreement, and if, according to the default clause, the financier seizes the truck on default, the prosecution launched by the purchaser against the financier then such a dispute was purely of a civil nature and the criminal proceeding initiated was an abuse of the process of the Court and, therefore, deserved to be quashed. But this does not squarely meet the requirement of the present dispute, because it was a case filed on a complaint. There was no investigation by the Police. But the approach to the High Court was made only after the Magistrate passed an order directing issue of summons against the nine accused persons.
15. Reliance was also placed by Mr. Bahl on the decision of Punjab and Haryana High Court in M/s. Balwant Singh v. District Food and Supplies Controller 1975 Criminal Law Journal 687, which helps him a lot. In that case it has been observed as follows:
The expression 'in the interest of justice' used in Section 482, would call for the interference of the High Court in the interest of justice even at the stage where only an F.I.R. is lodged with the police, if F.I.R. does not disclose any offence whatsoever. For, in a matter where the F.I.R. does not disclose any offence, cognizable or non-cognizable, then allowing the investigating agency to continue with the investigation and harass a citizen would certainly not be in the interest of justice. Against this kind of harassment of a citizen, the Court must exercise its inherent power whenever its assistance is sought by a citizen.
16. It is, therefore, very clear from the discussion made above that normally this Court will not interfere in the right of the investigating agency to proceed with the investigation in a case where cognizable offence is disclosed or complained of. It would necessarily mean that if the F.I.R. filed by the informant before the police discloses the ingredients of a cognizable offence, then this Court would not interfere in it by considering the probability of the evidence or the defence available with the accused. At that stage, the Court will not consider the evidence collected by the investigating agency just to quash the proceeding. The Court will merely see whether the F.I.R. discloses any offence, and if the facts mentioned in the F.I.R. do constitute an offence, then whatever other things may be, this Court will not interfere in the right of the executive to proceed with the investigation. But if the facts mentioned in the F.I.R. or complaint do not constitute any offence, would it be debarring this Court from exercising its inherent jurisdiction to secure the ends of justice? Because the process is not issued, it can technically be said that there is no abuse of the process of the Court. But it can well be said that f Police has started investigation on the allegations which do not show commission of any offence, then in order to secure the ends of justice, this Court can interfere and it would not be invading the powers of the Police in any way. It is not uncommon that due to some exterior considerations, the Police start investigation into any offence, arrest the accused, apply for remand and sometimes get a remand against him. If all these things are permitted to happen against the accused person even if the F.I.R. does not disclose any offence, would it be in the interest of justice to give an open field to the police to go on with the investigation? In the instant case, it is very clear that after the arrest of the petitioner from Delhi, he was released on bail by the Delhi Court. Thereafter, he was directed to appear before the learned Magistrate at Junagath, where the police made an attempt to get him under Police remand. The learned Magistrate refused to do so, but directed the petitioner to remain present in Junagadh upto 5-7-1980, i.e. for two days (as the order was passed on 4-7-1980), for investigation and thereafter the petitioner was required to attend Junagadh from Delhi every month on the first day of the month. This order can be justified if the allegations made in the complaint prima facie show that a cognizable offence is committed, and if from the facts it can be found that a cognizable offence is committed, then merely because Police is investigating the matter which may create difficulty for the petitioner who resides at Delhi, would not be a ground to interfere with that power of the Police. But, as considered above, if the allegations made in the F.I.R. prima facie do not disclose any offence and if it is found that the F.I.R. is lodged with the Police with some ulterior motive just to find out a short cut to a civil suit, then this Court can exercise its special jurisdiction under Section 482 of the Code for the ends of justice, because ultimately, by filing a charge-sheet, the Police would attempt to use the process of the Court which may ultimately be abused.
17. Let us, therefore, see whether the allegations made in the comp-aint prima fade disclose any criminal offence. I have already mentioned in some details the allegations made in the complaint. From that, it charly transpires that there was no direct communication between the petitioner and the original complainant. The learned Magistrate, in his order dated 3-7-1980 rejecting the remand application of the Police had some doubt, wherein he mentioned that it is doubtful whether transaction amounts to a criminal offence or not. But that may be a passing reference. However, it can well be said that even after perusing the complaint and the papers produced before him, the learned Magistrate had a doubt in his mind as to whether the transaction amounted to a criminal offence. The learned Additional Sessions Judge, while rejecting the application of the State for remand, observed in his order dated 4-7-1980 that it clearly appears from the submission made by Shri Baxi (learned Additional Public Prosecutor) after having seen the papers of the Police investigation with him that there was never any direct contact between the informant/complainant and the accused (petitioner). Mr. M.B. Shah, learned Public Prosecutor for the State, could not challenge this fact that there was no direct communication between the original complainant and the present petitioner.
18. In order that a person can be said to have committed an offence of cheating, ingredients of Section 415 of the Indian Penal Code should first be established. In terms it must be shown that the accused person fraudulently or dishonestly induced a person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induced that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, etc. This postulates that there should be direct contact between the person deceiving and the person deceived so that there can be some representation which fraudulently or dishonestly induced the person so deceived to deliver any property. In the instant case, it was not the petitioner who prompted the complainant to send goods to him. As per the allegations in the F.I. R; complainant seems to have suo motu sent the goods to M/s. Jindal Enterprises, 1531, Wazir Nagar, Kotla Mubarakpur, New Delhi, because in the complaint it has been stated that the complainant informed Delhi-Gujarat Freightways Transport Co. of Rajkot on phone that M/s. Jagdish Industries wanted to send 550 tins of solvent refined oil to M/s. Jindal Enterprises, Delhi, the firm of Dharamchand Gopiram and, therefore, if they have any spare vehicle of Delhi line, the same should be sent. This allegation does not show any where that there was any previous talk with the complainant by anybody or especially by the petitioner so as to induce the complainant to send the goods on a particular representation made to him. In view of these facts, Mr. M.B. Shah fairly conceded that the offence of cheating does not apparently seem to have been committed.
19. So far as the allegation of mis-appropriation is concerned, it is the submission of Mr. Bahl for the petitioner that there is not an iota of allegation showing any ingredient of criminal mis-appropriation or criminal breach of trust, because the goods were sent, and now, as admitted by the complainant, the petitioner has accepted to have received the goods, but it is the case that he offered lesser price to Suresh Agarwal. As per the contents in the F.I.R. Suresh Agarwal informed the complainant that he had received a phone from his father from Gurgaon that the petitioner had gone to him and told him that Suresh be informed that he would pay the party Rs. 40,000/-to Rs. 50,000/-and receipt for the entire goods should be given. This representation also was to the father of Suresh Agarwal and father of Suresh informed his son Suresh and the complainant was informed by Suresh. So, everything, so far as the present complainant is concerned, is hearsay. But it was fairly stated by Mr. Bahl that even if contention in the complaint be accepted on its face value, it does not show that the petitioner denied to have received the goods and also wanted to misappropriate them criminally.
20. As against this, Mr. M.B. Shah very vehemently argued that if the petitioner received the goods and even after receipt of goods he did not pass a Pucca receipt to the driver who had come with the goods and even in spite of wire having been sent did not directly acknowledge the receipt of wire or the goods to the complainant and after having received the goods he wanted to pay less price and wanted receipt for the entire amount would clearly show that his bona fides were not clear and he had a metis rea to appropriate the goods by paying lesser amount. It is, therefore, his submission that after the goods having been received, not communicating in any way to the person who sends the goods and talking with somebody else to pay lesser price after the goods are received would clearly show a criminal intention. It is his submission that if the goods of somebody else are received and payment is not made, then it would certainly be a breach of trust. Normally, breach of trust would be where a trust is created. While considering the ingredients of 'cheating', I have already mentioned that there was no direct communication between the petitioner and the complainant. Therefore, there was no question of any trust having been created by the petitioner in the complainant so as to commit breach of it. If the argument of Mr. M.B. Shah is accepted, then if a merchant, let us say 'A' sends goods to 'B' at the instance of 'C' who recommends that goods should be sent to 'B', and if 'B' does not make any payment, can he be hauled up before the Court for mis-appropriation or criminal breach of trust? It is the normal practice that goods are sent and if the amount is not paid, demand is made in a Court of law by way of civil dispute. If these normal transactions between a buyer and seller are put on the level of an offence which would be a criminal breach of trust or criminal mis-appropriation the moment the buyer refuses to pay the amount, then nobody would be safe from criminal prosecution. In the instant case, it seems that because the goods have gone to a far away place like Delhi, and because there was no direct contact of communication between the complainant and the petitioner, as Suresh Agrawal was a middle-man as seen from the complaint, finding that it may be difficult to proceed under the civil law or finding that it may be a long process, the complainant has found a short cut by filing a criminal complaint dragging the petitioner from Delhi right upto Junagadh and tried to force him if he can be prevailed upon to make the payment without any further litigations. It, therefore, seems that this is a short-cut found out and a criminal complaint is filed. But reading of the F.I.R. as such does not reveal any-where any ingredient of a criminal offence nor any offence of cheating or criminal breach of trust or mis-appropriation. In view of this, it would be mis-using the process of Court of justice if such a complaint is permitted to remain in on the file and police is permitted to carry on investigation requiring the petitioner-accused to come to Junagadh from Delhi quite often and, therefore, I think that the petition filed by the petitioner deserves to be allowed.
21. In the result, the petition succeeds and the same is allowed.
22. None proceedings pending before the Police at Junagadh by way of Junagadh Taluka Police Crime Register no. 36 of 1980 are ordered to be quashed so far as the present petitioner is concerned. Rule is made absolute.