1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL REVISION APPLICATION NO.583 OF 2007 WITH CRIMINAL WRIT PETITION NO.2067 OF 2007 Shri Jayesh Shah ...Applicant/Petitioner (Orig.Complainant) Vs. Shri Vimal Sanwarmal Saraf & Ors. ...Respondents (Orig. Accused) Mr.J.A.Udaipuri, Advocate for the Applicant Mr. S.R. Shinde, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 24TH NOVEMBER, 2009 P.C. 1.The applicant has challenged the order of the Additional Sessions Judge, Greater Bombay dated 3rd August 2007 refusing to issue process in complaint filed by him. Under that order the order of the learned Metropolitan Magistrate issuing process under Section 202 of the Cr.P.C against 2 of the accused and refusing to issue process against other accused came up for consideration. The initial complaint of the applicant 2 was against 8 Directors of the Limited Company. The process came to be issued against 2 Directors i.e., accused Nos.1 and 8. Process was refused against 6 Directors i.e. Accused Nos.2 to 7. The learned Sessions Judge has ordered that no process shall be issued as no case of criminal intent is made out. 2.It is material to see the complaint filed under Section 406, 415 and 420 read with Section 34 of the I.P.C. 3.The complaint shows that the complainant is a dealer in Transferable Quota Certificate which are also called Transfer Entitlement Certificate (the Certificate) issued by the Apparel Export Promotion Council in respect of the export of textiles. These certificates were supplied by the complainant to the accused upon their quota for export of textiles. These certificates are purchased by the dealers who appropriate whatever quota that they can export and sell the balance in open market on commission. In this case the certificates are acquired by the complainant and sold to the accused. They were redelivered by the accused and later resold to the dealers. The original quota seller had sold it to the complainant. The complainant sold some of those certificates to the accused. 4.The complainant was therefore, a middleman. The 3 transaction was for sale of certificates which is the movable property in a contract for sale of goods. There was therefore, a commercial transaction between the parties. That transaction has been set out in the complaint. 5.How the transaction came up and what the accused did and failed to do is apart of the complaint under which it would have to be ascertained whether the accused intentionally deceived the complainant in entering into the transaction and failing to honour the bills which were agreed to be paid to the complainant. 6.Paragraph 3 of the complaint sets out the representations made by the accused to the complainant. These are oral representations. These show that the accused informed the complainant how well placed they were in business and on export orders from various parties. It will have to be seen if these representations were meant to deceive the complainant or whether they deceived him. Unless a party has obtained export orders, the certificates would be of no use to the parties. No party without export orders would purchase certificates in the market from middlemen. The party purchasing the certificates would be required to pay consideration for the purchase. The party would be required to pay commission to the 4 middlemen. The standard of that party is of no importance. The fact of purchase itself shows an implicit promise to pay the consideration for the purchase of the movable property contained in the certificate under the Sale of Goods Act. Consequently, the representations of their standing in the export field cannot deceive the complainant. The complainant has not shown how the representations were untrue and how upon the representations the accused managed to obtain the purchase of the certificates which the complainant would have otherwise sold to another party. 7.The complaint shows that certain terms were finalised. The terms were with regard to the payment. The complainant delivered the certificates after making an application in that behalf as required under the Apparel Export Promotion Council Procedure. The complainant sets out that thereafter only part payment was received. Settlement talks ensued. Payment of the balance amount was promised. A Debit Note confirming the balance amount was executed. But there was refusal to honour it despite reminders. There was delay in making payment despite promises. A legal notice remained unheeded. Though the accused confirmed the transactions, they failed to pay. 8.The learned Sessions Judge has considered the full 5 ambit of the nature of the transaction, the fact that the complainant was a middleman and as a businessman he could not have been deceived. The learned Judge has further observed that the alleged false representations are about the payment and the assurances for the payment. The complainant was not likely to be deceived by being induced to enter into the contract upon certain representations of the export orders of the accused. 9.The impugned order is correct. It does not suffer from any material irregularity. The crux of the matter is that it is a civil transaction which can be adjudicated upon by a Civil Court. Process is not required to be issued as no offence under Section 415 of deceiving the complainant to induce him to enter into the transaction is shown. The process cannot be issued. The complaint must fail. 10.The Criminal Revision Application is dismissed. (SMT. ROSHAN DALVI, J.)