IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MMO No. 38 of 2009 Judgment reserved on : 26.11.2009 Date of decision : 7.1.2010 ____________________________________________________ Shiv Kumar …Petitioner. Versus Rakesh Kumar …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the petitioner : Mr. Rahul Mahajan, Advocate. For the Respondent : Mr. D.S. Nainta, Advocate Kuldip Singh, Judge This is a petition under Section 482 Cr.P.C. for quashing criminal complaint No.152-2/06, titled Rakesh Kumar v. Shiv Mittal pending in the Court of learned Judicial Magistrate Ist Class, Rohru, District Shimla. 2. The further relevant facts are that respondent had filed complaint under Section 406 IPC against petitioner on the allegations that petitioner had contacted the respondent to send apple boxes and therefore respondent had sent 87 apple boxes to the petitioner on 21.8.2006 in vehicle No.HP-63-1328 vide builty No.001157. The ________________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 consignment was received by petitioner and freight was also paid by the petitioner to the driver of vehicle No.HP-63-1328. 3. On 22.8.2006, the respondent had again sent 84 apple boxes to petitioner in vehicle No.HP-10B-0207 vide builty No.001158, this consignment was also received by the petitioner and paid freight charges of the vehicle. On 23.8.2006, the respondent had again sent 88 apple boxes to petitioner in vehicle No.HP-03-1435 vide builty No.001156 and the consignment was received by the petitioner, the freight charges amounting to Rs.3400/- were paid by the petitioner to the driver. 4. The further case of the respondent is that he had sent in all 259 apple boxes to petitioner, the rate was Rs.700/- per box and sale proceeds of the apple boxes was Rs.1,82,000/-. The respondent had requested the petitioner several times to pay the sale proceeds of the apple boxes but the petitioner has not paid the sale proceeds of the apple boxes and has thus committed criminal breach of trust by dishonestly misappropriating and converting to his own use the apple boxes. On those allegations the complaint under Section 406 IPC was filed. The learned Judicial Magistrate has issued process to the petitioner. 5. The petitioner has alleged that no case under Section 406 IPC is made out against the petitioner. Hence he has filed the petition under Section 482 Cr.P.C. for quashing the proceedings. The learned counsel for the petitioner has submitted that on the basis of allegations in the complaint, preliminary evidence, no case under Section 406 IPC is made out against the petitioner. The alleged 3 grievance of the respondent is of civil nature and no criminal case is made out against the petitioner. The learned counsel for the respondent has submitted that the petitioner is at liberty to approach the learned Judicial Magistrate and submit before that Court that there is no sufficient material for issuing process against the petitioner. It has been submitted that petitioner has failed to make out a case for quashing of proceedings under Section 482 Cr.P.C. on the basis of material on record. The present case is not a case of no evidence. 6. I have heard learned counsel for the parties. The respondent in the complaint has alleged that the apple boxes were sent to petitioner in the vehicle and the petitioner had paid freight charges to the driver of the vehicles after the apple boxes were delivered to the petitioner. It is not the case of the respondent that he himself delivered the apple boxes to the petitioner. CW-1 Rakesh Kumar has stated that on 21.7.2006 he had sent 87 apple boxes in vehicle No.HP63-1328 vide Bilty No.001157. The accused had paid Rs.3500/- freight to the owner of the vehicle. On 22.8.2006 he had sent 84 apple boxes in vehicle No.HP-63-1435 vide Bilty No.001156 to accused. In all he had sent 259 apple boxes. He has hot stated that the apple boxes which were sent by him were actually delivered to the petitioner. CW-2 Joginder has stated that he transported the apples of Rakesh in vehicle No.HP-63-1328 and the apples were unloaded at shop No.18. CW-2 Joginder has not stated that he had delivered apple boxes to accused. CW-1 Rakesh has stated that accused is the owner of shop No.18. CW-2 Joginder has stated that he transported the apples in vehicle No.HP-63-1328. He has not stated that he 4 transported 87 boxes and delivered to the accused. CW-2 has also not stated that on which date he transported the apples and delivered at shop No.18. The respondent has not examined any witness to show that apples which were allegedly transported in vehicle Nos.HP 10-B-0207 and HP 63-1435 were actually delivered to the accused. CW-2 Joginder has made very vague statement and has not connected the delivery of 87 boxes of apple to the accused as per the case of the respondent. CW-1 Rakesh has not stated that he himself accompanied the vehicles for delivery of apples on various dates to the accused. 7. In Inder Mohan Goswami and another vs. State of Uttaranchal and others (2007) 12 SCC 1 Supreme Court has held that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. The Supreme Court expressed opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution. On the basis of facts of that case the Supreme Court has held that the dispute in question is purely of civil nature and respondent No.3 has already instituted a civil suit in the Court of the Civil Judge. In the facts and circumstances of the case, initiation of criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the court. The Supreme Court ultimately quashed the proceedings emanating from the FIR. In Priya Vrat Singh and others 5 vs. Shyam Ji Sahai (2008) 8 SCC 232 the High Court rejected the proceedings under Section 482 Cr.P.C. by taking the view that the trial court can be directed to conclude the trial expeditiously and at the time of framing charges, the appellants can raise such points as have been raised. The Supreme Court after noticing State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC 335 and other cases has held that the case is covered by Category 7 of the illustrations given in Bhajan Lal case and quashed the proceedings pending before the Special Chief Judicial Magistrate, Varanasi. In V.Y Jose and another vs. State of Gujrat and another (2009) 3 SCC 78, it has been held that a matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, latter being a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. They have a duty in terms of Section 483 to supervise functioning of trial courts. 8. The respondent has filed complaint under Section 406 IPC but before that the respondent was required to establish that in fact he had entrusted 259 apple boxes to the accused. The question of misappropriation of apple boxes or the market value thereof is secondary before that entrustment of apple boxes by or on behalf of respondent to the petitioner is necessary which has not been established in the present case. 9. In order to prove criminal breach of trust the first requirement is entrustment with the property or dominion over the property. The respondent has not led the minimum evidence required 6 at this stage to establish that 259 apple boxes were actually entrusted to the petitioner or the petitioner had dominion over 259 apple boxes. Therefore, the first ingredient of breach of entrust in the present case has not been established by leading cogent, reliable and legal evidence. The respondent has already filed a suit for recovery against petitioner which is pending. The right, if any, of the petitioner to approach the trial Court and submit that no case is made out against the petitioner itself is not enough to deprive the petitioner to approach this court by filing a petition under Section 482 Cr.P.C. that on the basis of material on record, no case is made out against the petitioner and the criminal proceedings may be quashed 10. In the facts and circumstances of the case the petitioner has made out a case of quashing criminal complaint No.152-2/06 titled Rakesh Kumar v. Shiv Kumar pending in the Court of learned Judicial Magistrate Ist Class, Court No.2, Rohru. Accordingly, criminal proceedings arising out a complaint No.152-2/06 titled Rakesh Kumar vs. Shiv Kumar are quashed. It is made clear that the Civil Suit which has been filed by respondent against petitioner shall be decided in accordance with the evidence and material on record and the quashing of the criminal proceedings against the petitioner shall have no bearing on the merits of Civil Suit. January 7, 2009. (Kuldip Singh) (sks) Judge.