CR.RA/242/2001 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 242 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ======================================================== AQUATREAT ENGINEERS CO. LTD., TH' HEMANG S. SHAH-DIRECTOR - Applicant(s) Versus MADHUSUDAN CERAMICS LTD. TH' T.B.MAHESHWARI VICEPRESIDE & 1 - Respondent(s) ========================================================= Appearance : MR BP MUNSHI for Applicant(s) : 1, MR PRAKASH K JANI for Respondent(s) : 1, MRS FD PATEL APP for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 29/04/2008 ORAL JUDGMENT : 1. Petitioner – accused has preferred this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal CR.RA/242/2001 2/13 JUDGMENT Procedure (hereinafter referred to as 'the Cr. P.C.) and challenged the judgment and order passed by learned Sessions Judge, Bharuch on 27- 3-2001 in Criminal Revision Application No. 67 of 1998 whereby the judgment and order passed on 2-5-1998 by learned J.M.F.C., Jambusar in Inquiry Case No. 83 of 1997 dismissing the complaint u/s 203 of the Cr.P.C., has been quashed and set aside. 2. The petitioner – accused and the respondent – complainant are the Companies registered under the provisions of the Indian Companies Act. Respondent – original complainant filed complaint against the petitioner - accused for the offence punishable u/s 406 and 420 of the I.P. Code in the Court of learned J.M.F.C., Jambusar. Learned Magistrate after following the procedure, ordered to make inquiry u/s 202 of the Cr. P.C. Learned Magistrate after recording evidence adduced on behalf of the respondent - complainant came to a conclusion that there is no prima facie case against the petitioner – accused and the disputes between the parties are of civil nature and therefore dismissed the complaint by order dated 2-5-1998 passed in Criminal Case No.189 of 2001 (Inquiry Case No.83 of 1997). Therefore, respondent – complainant filed Criminal Revision Application No.67 of 1998 in the Court of learned Sessions Judge, CR.RA/242/2001 3/13 JUDGMENT Bharuch. The lower revisional court by order dated 27-3-2001 allowed the criminal revision application and set aside the order passed by the trial court and directed the trial court to issue process against the petitioner – accused. Therefore, the petitioner - accused has preferred this criminal revision application. 3. I have heard learned advocate Mr. B.P. Munshi for the petitioner – accused and learned advocate Mr. P.K. Jani for the respondent – complainant and Mrs. F.D. Patel for respondent - State at length and in great detail. 4. It appears that respondent – complainant was manufacturing ceramics tiles and the petitioner - accused was dealing in business of installing water and waste water treatment plants, reverse osmosis desalination plants and rendering technical services. The respondent – complainant wanted to instal reverse osmosis desalination plant, and therefore, the petitioner – accused made offer to instal water treatment plant as per the requirements and allegedly assured that they would instal the plant as per requirements and would make it functional and allegedly gave guarantee for one year except membranes and guarantee of three years with membranes necessary parts required for CR.RA/242/2001 4/13 JUDGMENT operation of plant. The respondent – complainant accepted the offer and placed an order to instal the plant and agreement in that regard was executed between the parties. As per the agreement cost of plant was agreed at Rs.12,10,000/-. Accordingly, the petitioner – accused isntalled the plant and respondent – complainant paid Rs.11,10,000/- to the petitioner – accused. It is alleged that after installation of the plant, it did not work as per requirements of respondent No.1 – complainant. Therefore, the petitioner – accused was informed by letter and fax and was asked to fulfil the contract by making the plant functional. Despite that the petitioner – accused allegedly failed to make the plant functional and could not discharge liability as per assurance and promises given by them. Therefore, respondent No.1 – complainant gave a registered notice to the petitioner – accused. The petitioner – accused gave reply and demanded the amount of expenses to make the plant functional. Thereafter, there was exchange of correspondence between the parties but the petitioner – accused allegedly did not perform their part of agreement. Therefore, respondent – complainant filed complaint against the petitioner – accused for the offence punishable u/s 406 and 420 of the I.P. Code. 5. Learned advocate Mr. Munshi submitted that CR.RA/242/2001 5/13 JUDGMENT looking to the nature of the transaction the disputes between the parties are of civil nature. Respondent – complainant accepted the offer for installation of plant and entered into an agreement with the petitioner – accused in that regard and the petitioner – accused installed the plant. The respondent – complainant made part payment at the time of entering into the agreement and with a view to avoid payment of remaining amount false complaint is filed. He also submitted that the petitioner – accused installed the plant and it was in working condition. However, on account of mishandling of plant by respondent – complainant, the plant sustained damage and the petitioner – accused made efforts to repair the plant but respondent – complainant was not prepared to make expenses required for repairing of the plant. He also submitted that there is no evidence of the entrustment of the property to the petitioner – accused and his domain over the property. Therefore, the ingredients of offence are not satisfied. He also submitted that there is no evidence to indicate that the petitioner – accused induced respondent – complainant to deliver the order for installation of plant and therefore the ingredients of Section 406 and 420 of the I.P. Code are not satisfied. He also submitted that the offence punishable u/s 406 of the I.P. Code and offence punishable u/s 420 CR.RA/242/2001 6/13 JUDGMENT of the I.P. Code cannot go together and the learned Magistrate was justified in passing the order of dismissal of complaint but the lower revisional court committed error in setting aside the order. Therefore, the present revision application is required to be allowed. He relied on number of decisions. 6. Learned advocate Mr. Jani submitted that on the basis of the promises made by the petitioner – accused, respondent – complainant entered into agreement for installation of the plant but the plant was not satisfactorily working and therefore complaints were made to make the plant functional, but the petitioner – accused failed to make the plant functional. He also submitted that though the petitioner – accused had no expertise in installation of plant but made representation that they have expedrtise and relying upon the representation made by them, respondent – complainant was induced to enter into agreement. Therefore, ingredients of Sections 406 and 420 of the I.P. Code are satisfied. He also submitted that the petitioner – accused gave warranty about working of the plant but the plant did not work and therefore the petitioner – accused committed offence punishable u/s 406 and 420 of the I.P. Code. He also submitted that the Sessions Court, Bharuch directed the Magistrate to issue CR.RA/242/2001 7/13 JUDGMENT process and accordingly process was issued and now only remedy available to the petitioner under law is to challenge the order of process issued by the trial Court. Therefore, this revision application has become infructuous He also relied upon number of decisions. 7. Learned A.P.P. Mr. F.D. Patel adopted the arguments advanced by learned advocate Mr. Jani for the respondents supporting the judgment and order of the lower revisional court. 8. It appears from the accusations made in the complaint that respondent - complainant made inquiry with the petitioner - accused for installation of water treatment plant by writing a letter to them. The petitioner – accused by letter dated 12-2-1996 informed respondent – complainant that they are in a position to instal plant as per requirements and made offer to instal the plant. Thereafter, negotiations took place between the parties and cost of plant was decided. The petitioner accused allegedly gave one year warranty for working of plant without membranes and three years' warranty with membranes. Thereafter, the plant was installed and amount of Rs.12,10,000/- was paid to the the petitioner - accused but after installation of plant it did not work as per requirements of CR.RA/242/2001 8/13 JUDGMENT respondent – complainant and therefore the petitioner – accused was informed. It also appears that the petitioner – accused made efforts to make plant functional but it could not work as the petitioner – accused allegedly sent inefficient persons. Thereafter, notice was sent to the petitioner - accused who gave reply contending that they have performed their part of agreement but the plant stopped functioning as it was mishandled by respondent - complainant. 9. In view of above, it transpires that initial inquiry with regard to expertise of the petitioner – accused in installation of plant was made by the respondent – complainant, and thereafter agreement was entered into and the plant was installed at the premises of respondent complainant. It also appears that when the plant was handed over to the respondent complainant it was functioning but after sometime it stopped functioning and therefore the petitioner – accused was informed. It is not the case of respondent – complainant that after receiving cost of the plant the petitioner – accused did not instal plant or that plant was not functioning since installation. Therefore, it could not be said that the petitioner – accused fraudulently and dishonestly misappropriated the property or induced respondent – complainant to deliver any CR.RA/242/2001 9/13 JUDGMENT property. According to respondent – complainant the plant did not function satisfactorily. Therefore, it cannot be said that the petitioner – accused committed breach of trust 10. The correspondence annexed with compilation indicates that the petitioner – accused made offer for installation of plant and after negotiation agreement was executed between the parties. It also appears that respondent – complainant made complaint about poor design and bad workmanship as plant did not give satisfactory performance for continuous period of one week at any time. The correspondence also indicates that in response to the complaints made by respondent – complainant for non- satisfactory functioning of plant, the petitioner - accused alleged mishandling of plant by respondent – complainant and alleged that they did not take proper care in operation of plant. It also indicates that the plant was handed over to respondent – complainant after its performance run and respondent – complainant was given operation and maintenance manual for operation of the plant. The correspondence indicates that the petitioner – accused made offer for discussion and to give services to put the plant again in working condition but demanded expenses for the same. Therefore, it appears that each party blamed other party for non- CR.RA/242/2001 10/13 JUDGMENT functioning of plant. Copy of notice dated 25- 6-1997 annexed with the compilation given by respondent – complainant to the petitioner – accused also alleges breach of contract. It also indicates that the petitioner – accused sent technicians to make the plant functional but the plant could not run. This clearly indicates that the petitioner accused after receiving complaints made efforts to make the plant functional, but disputes arose between the parties with regard to expenses. Considering the entire transaction, the dispute appears to be of civil nature as the parties have blamed each other for breach of contract. Therefore, in my view, the learned Magistrate was justified in passing the order u/s 203 of the Cr.P.C. and lower revisional court committed error in exercising the powers vested in it. 11. Learned advocate Mr. Munshi relied upon following decisions in the case of (i) S.N. Palanitkumar and Ors. Vs. State of Bihar and Anr, reported in AIR 2001 SC 2960; (ii) Veljibhai Baghavji Patel Vs. The State of Maharashtra, reported in AIR 1965 SC 1433; (iii) Rajnikant Ambalal Patel Vs. State of Gujarat & Anr, reported in 1987 (2) G.L.R. 1152; (iv) B. Suresh Yadav V. Sharifa Bee & Anr, reported in 2008 Cri. L.J. 431, and (v) Rajendra Kumar Sitaram Pande & CR.RA/242/2001 11/13 JUDGMENT Ors. Vs. Uttam and Anr., reported in 1999 Cri.L. J. 1620 12. All these decisions are in respect of offence punishable u/s 406 and 420 of the I.P. Code. In the present case, the evidence produced before the learned Magistrate indicates that both the parties alleged breach of contract and blamed each other for non-functioning of plant. The correspondence indicates that there is no prospect of the case ending in conviction and the trial would be an exercise in futility. Therefore, learned Magistrate was justified in dismissing the complaint. 13. Learned advocate Mr. Munshi also relied upon the decision of Rajan Sanatkumar Joshi Vs. Rajnikant Govindbhai Shah & Anr., reported in 2007 (1) G.L.H. 652, wherein this Court has given direction to the courts with regard to formalities to be observed before issuing process. 14. Learned advocate Mr. Jani relied upon the decision of Chandra Deo Singh Vs. Prokash Chandra Bose and Anr., reported in AIR 1963 SC 1430, wherein the Hon'ble Supreme Court observed that, “the reasons for dismissal of complaint are required to be given by the trial Court”. In the CR.RA/242/2001 12/13 JUDGMENT instant case, the trial court has given reasons for dismissal of the complaint. He also relied upon the decision of Smt. Nagawwa Vs. Veeranna Shivalingappa, reported in 1976 SC 1947, Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors, reported in JT 1999 (6) SC 618, Lalmuni Devi State of Bihar & Ors, reported in JT 2001 (1) SC 150 and M. Krishnan V. Vijay Singh and Anr., reported in 2002 SCC (Cri.) 19.. In all these decisions, the Hon'ble Supreme Court has laid down principle regarding when process can be quashed and has held that only because civil claim is maintainable it does not mean that criminal complaint cannot be maintained. In the present case, as observed earlier the evidence does not show that ingredients of Sections 406 and 420 of the I.P. Code are satisfied. Therefore, all these decisions do not help the respondent – complainant. 15. It is also submitted by Mr. Jani that the order of issuance of process is already implemented. Therefore, this revision application has become infructuous. In my view, this submission cannot be accepted as lower revisional court has directed the Magistrate to issue the process while allowing revision application. Therefore, it is merely compliance of the order passed by the superior court. When CR.RA/242/2001 13/13 JUDGMENT challenge is made to such order and the order is set aside and direction is given, it cannot be said that such compliance would render proceedings infructuous in the superior court. Therefore, this criminal revision application is required to be allowed. 16. In the result, this criminal revision application succeeds and judgment and order passed by learned Sessions Judge, Bharuch on 27- 3-2001 in Criminal Revision Application No. 67 of 1998 is quashed and set aside and judgment and order passed by learned J.M.F.C., Jambusar on 2- 5-1998 in Criminal Case No.189 of 2001 in Inquiry Case No. 83 of 1997 is restored and confirmed. Rule is made absolute. (Bankim N. Mehta, J.) /JVSatwara/