1 Cri.Appln.No.2905/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2905/2010 1) Maharashtra Hybrid Seeds Co. Ltd. B-4, Industrial Estate, Jalna. 2) Dr.Badrinarayan s/o Ramulal Barwale, Age: 80 Yrs., occupation – Business and Agril. r/o as above. 3) Rajendra Badrinarayan Barwale, Age: 54 Yrs., occu. And r/o as above. 4) Meghsham Rupchand Dudhani, Age: 62 Yrs., occu. Service, r/o as above. - APPLICANTS VERSUS 1) The State of Maharashtra. 2) Grasim Industries Ltd. Cement Division, Ahura Centre, 2nd Floor, 82, Mahakali Caves Road, MIDC Circle, Andheri(E) Mumbai-93. (Through its Constituted power of attorney - Bhagwandas Dindayal Agarwal) - RESPONDENTS ***** Mr.NS Ghanekar, Advocate for Applicants ; Mr.PP More, APP for State. Mr.Vijay Sahrma Adv, for Resp.No.2 2 Cri.Appln.No.2905/2010 ----- CORAM : K.U.CHANDIWAL, J. DATE : 1st July, 2011. PER COURT : 1) Heard learned Counsel for the parties extensively. Rule made returnable by consent of parties. 2) The accused/applicants, as In-charge of MAHYCO, a registered company, had transactions with Respondent No.2 – Grasim Industries Ltd., the complainant through its authorized agent, accused no.5 – Mr.SB Agarwal. There is no controversy between both the sides that huge quantity of cement was supplied through the agent, accused no.5 – M/s Piyush Agro Inputs Marking Pvt. Ltd. To the accused/applicant – MAHYCO, amount of such purchase was Rs. 1,15,95,395/-, out of which the complainant – Grasim Industries Ltd. Received Rs.93,03,023/- and Rs.22,92,372/- remained unpaid. 3) Reading the complaint as a whole, it is clear that the transaction of purchase of cement by the accused/applicant though was from the complainant – Grasim Industries, the entire affairs were dealt with by accused no.5 – SB Agarwal. He issued his invoice, no sooner supplies were made and consequently, the 3 Cri.Appln.No.2905/2010 accused/applicants were justified to make the payment of the goods received to the accused no.5 – SB Agarwal. 4) It was informed, some of the Directors of accused/applicant are related to SB Agarwal, may be correct, however, that by itself would not amount to infer connivance or a conspiracy to cheat the complainant. Primarily, it is indicative, the monetary transactions which the accused no.5 had with his mentor, the complainant, has been distorted by said accused no.5 However, it is to be complainant and accused no.5 to resolve the controversy, including facing the criminal prosecution by accused no.5. 5) Incidentally, in a civil suit being Special Civil Suit No.101/2001 moved by M/s Grasim Industries against MAHYCO AND M/s Piyush Agro Inputs Marketing Ltd., in paragraph 11, it is referred, - "As stated above, the defendant no.2 has committed a fraud by substituting his own invoice in place of the plaintiff's invoice without the plaintiff knowledge and thereby taking the amount from the defendant no.1 and not paying the same to the present plaintiff.". The reference to the plaintiff is to M/s Grasim Industries, defendant no.1 is MAHYCO and 4 Cri.Appln.No.2905/2010 defendant no.2 is M/s Piyush Agro (SB Agarwal). The overall survey of above details illustrate, there could not have been prosecution against the accused/applicants. It is mere demonstrating abuse of process of law. The accused/applicants could have been witnesses for the cause propagated by the complainant (plaintiff) – M/s Grasim Industries, against the accused no.5, who was their allegedly a commission agent. 6) Since there are no specific allegations against the accused/applicants in the complaint, none of the features ascribe any role to the accused/applicants. They even do not stand primarily to meet the liability. The prosecution warrants to be quashed and set aside in terms of Section 482 of Cr.P.C. to prevent abuse of process of the Court. In the result, the complaint as against the accused/applicants is quashed. Needless to indicate, the prosecution as against the accused no.5 – SB Agarwal will continue. Rule made absolute in the aforesaid terms. ( K.U.CHANDIWAL ) JUDGE bdv/