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Madanlal and Anand Prakash Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Petition Nos. 43 of 1977 and 33 of 1978
Judge
Reported in1979WLN(UC)212
AppellantMadanlal and Anand Prakash
RespondentThe State of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredHari Prasad v. Vishnu
Excerpt:
.....start criminal proceedings.;it appears to be a case of civil nature of breach of contract and no criminal offence under section 420, or any provision of the indian penal code is prima facie made out.;petition accepted - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years -..........rampura, delhi. the partnership came into existence on 181-1973. a complaint was filed against the accused-petitioners and one gopal on february 23, 1974 by ratanlal, a partner of m/s chattar & co., beawar under sections 420, 406 and 120b ipc with the allegations that shivcharan and anand prakash came to beawar on or near about december 15,1973 and assured the complainant that they have a big dal mill at delhi and wanted to purchase pulses at beawar from the firm of the complainant. they represented at beawar that the goods should be sent through trucks along with the munim of the complainant and the price of the goods shall be paid to the munim. believing the representation of the accused- petitioners bhivcharan and anand prakash chattar & co., beawar despatched a consignment of 100.....
Judgment:

Mahendra Bhushan, J.

1. A criminal case No. 543/77 against Shivcharan Lal, Madan Lal and Anand Prakash is pending in the court of Munsif and Judicial Magistrate 1st Class, Beawar. The accused- petitioners have come to this Court with a prayer that the criminal proceedings pending before the learned Magistrate be quashed. These two petitions arise out of the same case and, therefore, can be conveniently disposed of by a single order. To dispose of these petitions, some facts need be stated, which are as follows.

2. Shivcharan Lal accused-petitioner along with two other Gopal Prasad son of Madanlal and Hari Prasad son of Kishorilal constituted a partnership firm M/s. Srigopal Dal Mills at 142-A, Mahant Building, Rampura, Delhi. The partnership came into existence on 181-1973. A complaint was filed against the accused-petitioners and one Gopal on February 23, 1974 by Ratanlal, a partner of M/s Chattar & Co., Beawar under Sections 420, 406 and 120B IPC with the allegations that Shivcharan and Anand Prakash came to Beawar on or near about December 15,1973 and assured the complainant that they have a big Dal Mill at Delhi and wanted to purchase pulses at Beawar from the firm of the complainant. They represented at Beawar that the goods should be sent through trucks along with the Munim of the complainant and the price of the goods shall be paid to the Munim. Believing the representation of the accused- petitioners bhivcharan and Anand Prakash Chattar & Co., Beawar despatched a consignment of 100 bags of Moong on January 10, 1974 in truck No. HRH 8921 and the credit memo of Rs.21,5C6/-being the price of 100 bags of Moong was also sent through Kanwarlal Lodha Munim of M/s Chattar and Co. Again, on January 11, 1974, a consignment of 100 bags of Moong was sent through truck No. RSM 6461, & the goods receipt was prepared in the name of the seller. A credit memo of Rs. 22,579/- was also sent through Shri Shantilal Lodha. It was instructed to Shantilal Lodha that in case the price of consignment sent on 10-1-74 was paid, only then the consignment of 100 bags of Moong sent on 11-1-74 should be delivered to the accused persons. Both the consignments were delivered at Delhi on the representation of the accused persons that they will make the payment of the price through draft the next morning. But the payment was not made and even after a request the amount was not paid According to the averments of the complaint, the intention of the accused persons, Shivcharan and Anand Piakash, at the time when they came to Beawar was not to make the payment of the price and the intention of the accused persons at Delhi was also the same. The learned Magistrate forwarded the complaint under Section 156(3), CrPC and a case was registered at P.S. Beawar. After investigation, a final report was submitted in the case by the Investigating Officer on August 31, 1974 on the ground that the case was of a civil nature Perhaps, that final report was not accepted and the investigation was re-opened on October 14, 1974 by the Additional S.P., Beawar. Nothing substantial happened for a few years, and it was only on December 31, 1976 that MadanJal accused was arrested and was released on bail on January 4, 1977 After investigation, a charge sheet was filed against the accused-petitioners and Gopal was added as accused (2) in the complaint and was shown as an absconder.

3. The learned Counsel for the petitioners have made two fold submissions. Firstly, it is contended that the offence of cheating under Section 420 IPC was complete at Delhi, and therefore, the courts at Beawar had no jurisdiction Secondly, it is submitted that even taking the allegations of the complaint, the charge sheet and the other documents submitted there with at their face value, it is only a case of civil nature and no criminal offence is made out against any of the accused-petitioners.

4. Under Section 177 CrPC, every offence ordinarily has to be enquired into and tried by a Court in whose jurisdiction it was committed Under Section 179, CrPC when an act is an offence by reason of anything which has been done and of a consequence which has ensued the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.

5. So far as an offence of cheating under Section 420 IPC is concerned, two essential ingredients of the same are: deceitful representation and delivery of the property in consequence thereof, A perusal of the complaint will show that only against accused persons Shivcharan and Anand Prakash it is alleged therein that both of them came to Beawar and represented to M/s. Chattar and Co., that on receiving a message from them, Chattar and Go should send the goods in a truck through their Munim along with a credit memo and the amount shall be paid through draft to the Munim at Delhi. There is no allegation that at that time the intention of the accused persons was not to pay the amount through draft. It is not averred in the plaint that any of the other accused- petitioners came to Beawar and so far as Anand Prakash and Madanlal are concerned, besides there being allegations against Anand Prakash in para 2 of the complaint, there are also the allegations contained in paras 3, 9. 10, 11 and onwards But, there is no allegation that any misrepresentation by other accused petitioners took place at Beawar. On behalf of the accused-petitioners reliance has been placed on Antony D'Siloa and other petitioners AIR 1949 Mad. 3 M.A Kaleek Alias James Cooper v. Emperor 28 Cr LJ 452, Bijoyanand Patnaik v. Mrs K.A.A. Brinnand : AIR1970Cal110 , and Moldarik Ali Ahmed v. The State of Bombay 0043/1957 : 1957CriLJ1346 . It has been held in these authorities that if the representations are made at one place and the delivery of the property in consequence thereof also takes place at that place then that place alone is a place where the offence is committed. In Mobarik Ali's case AIR 1957 SC 857, the accused made representations to the complainant at Bombay from Karachi. It was held that notwithstanding the fact that the accused was making representations from Karachi, the offence was committed at Bombay, where as a result of these, representations the complainant paid the amount. It may be mentioned here that as per the allegations of the complaint the property and the goods had pissed to the accused persons and only the price of the goods was to be paid by the partners of M/s. Gopal Dal Mill. Therefore, the allegations do not make out a prima facie case under Section 406 or an offence under Section 120, IPC At best, it may be said for the present purpose, that an offence under Section 420 IPC might have been made out, if from the allegations of the complaint criminal intention of the accused can be inferred Therefore, so far as the accused-petitioner Madan Lal is concerned, even from the allegations of the complaint no offence under Section 420 IPC was committed at Beawar. But, this should not detain us for long, because as I shall presently show from the allegations of the complaint, charge sheet and the other documents produced in support of it, the case appears to be of a civil nature.

6. The powers of this Court under Section 482, CrPC can be invoked even if the allegations in the complaint are taken at their face value, no offence prima facie is made out. Here, it will suffice to make a reference to State of Karnataka v. Muni Swami and Ors. 1979 Cr LJ 143 & Madhu Lime v. State of Maharashtra : 1978CriLJ165 , wherein it has been held that if the allegations in the complaint or the FIR as the case may be, do not prima facie make out an offence against the accused, then it will be abuse of the process of the Court, if the proceedings against the accused persons are allowed to proceed and it will be a fit case if in exercise of the jurisdiction of the Court under Section 482 CrPC the proceedings are quashed,

7. To make out an offence under Section 420 I PC the intention of the accused persons must be dishonest or fraudulent at the time when the representation is alleged to have been made by them. In the instant case, a perusal of the complaint the other papers and the charge sheet will show that all that is mentioned therein is that the accused Shivcharan Lal and Anand Prakash came to Beawar and represented that they wanted to purchase pulses from Chattar & Co., and the payment shall be made at Delhi through the Munim who should accompany the consignees. The dispute relates to two consigments of 100 bags each of Moong which were despatched on January 10 and 11, 1974, through Kanwarlal Lodha Munim and Shankarlal Lodha. Kanwarlal Lodha was examined under Section 161, CrPC during the investigation of the case and his statement is on record. A typed copy of the same has been submitted as Annexure 'G' to Criminal Misc. Petition No. 33/78, and the original is on record of Criminal case No. 543/77 of the Court of Munsiff and Judicial Magistrate, Beawar, at Page 189. This is an additional statement of Kanwar Lal and he has clearly stated that Shivcharan Lal wanted to pay the amount of Rs. 20,362/, but he refused to accept the same and demanded full payment which they promised to pay. Anand Prakash is also alleged to have said that if he (Kanwarlal) does not accept the amount, the amount will be deposited in the Bank This statement of Kanwarlal that Anand Prakash wanted to pay more than 20,000/-, which was about 50 per cent of the price of the two consingments, negatives the case of the prosecution that the intention of the accused persons from the very beginning or at least when they entered into negotiations for purchase of Moong at Beawar was dishonest or fraudulent. Today, a certified copy of judgment of the Additional Sessions Judge, Delhi has been filed on behalf of Shivcharan accused and from its perusal it appears that during the investigation of some case lodged at the instance of some other complaint) some bags of Moong and Pulses were seized by the police in the month of January 1974 itself It can, therefore, be said that though Shivcharan accused wanted to pay about 50 per cent of the price of two consignments to the Munim Kanwarlal of Chattar & Co., at certain time, but thereafter they could not make the payment. Therefore, merely because the payment could not be made it cannot be said that the intention of the accused person was dishonest or fraudulent in this case. It is common knowledge that in order to exert pressure for the payment of the money, even in cases of civil nature, twist is given as if they are criminal cases, and unless from the facts and circumstances of the case, criminal intention is made out, in a case of civil nature, the court should be slow to start criminal proceedings. In this connection suffice it to refer to Hari Prasad v. Vishnu AIR 1974 SC 301, in which it has been held that if from the allegations a case of breach of contract is made out, it does not or could not give rise to criminal prosecution In this case, a civil suit has also been filed by Chattar & Co., against M/s Sri Gopal Dal Mill and its partners and a copy of the plaint, as is evident, is filed in Criminal Misc. Application No. 33/78, Annexure H', at page 48. It may also be observed here that once the police gave a final report, but the case was re-opened after some time and no action was taken till 1976. Therefore, it appears to be a case of civil nature of breach of contract and no criminal offence under Section 420, or any provision of the Indian Penal Code is prima facie made out. The facts of this case are such that if the proceedings are allowed to proceed, it will amount to an abuse of the process of the court

8. Therefore, both these petitions are accepted and the entire proceedings pending against the accused- petitioners in case No. 543/77 of the Court of Munsif & Judicial Magistrate, Beawar are hereby quashed.


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