IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 2465 of 1998 with CRIMINAL MISC.APPLICATION No 2467 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- KEKI PATEL OF SINGAPORE AIR LINES LTD. Versus DHANESH BADARMAL JAIN PROP. OF M/S. MAHAVIR APPARELS -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 2465 of 1998 MR SA DESAI for Petitioner No. 1 MR PARESH M DAVE for Respondent No. 1 MR AMAR P DAVE for Respondent No. 1 RULE UNSERVED for Respondent No. 2 NOTICE SERVED for Respondent No. 3 MR VM PANCHOLI, Ld. APP for Respondent No. 4 2. Criminal Misc.Application No. 3671 of 1998 MR VARSHAL M PANCHOLI for Petitioner No. 1 NOTICE SERVED for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 16/07/2002 COMMON C.A.V. JUDGEMENT #. These two applications under Section 482 of the Code of Criminal Procedure, 1973, [for short "Code"] have been preferred by the concerned petitioners for quashing and setting aside two private complaints filed on 22/06/1998 by contesting respondent - Dhanesh Badarmal Jain being Criminal Case Nos.2264 and 2263 of 1998 respectively before the learned Metropolitan Magistrate, Court No.9 at Ahmedabad City against the present petitioners for offences punishable under Sections 407, 420, read with Sections 34 and 114 of the Indian Penal Code. #. So far Misc. Criminal Application No.2465 of 1998 is concerned, the concerned complainant has filed Criminal Case No.2264 of 1998 stating that the said complainant is carrying on business as sole proprietor of the concern known as Mahavir Apparels at Ahmedabad. According to him, he is carrying on business as garment manufacturer and exporter and, therefore, he exports the consignments to various countries from time to time. #. It is further contended in the complaint that the present petitioners along with other accused persons have also been managing affairs in the names of M/s.Singapore Air Lines Limited, M/s.Trans Arabia Transport (P) Limited and M/s.New Glob Air Services (P) Limited at the address shown in the complaint. #. It is alleged in the said complaint that the present petitioners along with other accused persons had undertaken to carry complainant's goods [material of accessories for readymade garments] as detailed in complainant's Invoice dated 29/04/1997 produced with the said complaint having a value of Rs.7,67,232-00 [equivalent 119,830-00 French Frac] [The said Invoice is produced in the complaint]. It is further alleged in the complaint that the present petitioners undertook to carry and deliver the said consignment "TO ORDER" as instructed by the complainant with the stipulation that on payment of the value of the consignment by the notified party i.e. M/S. BANKCO S.A. of France through the Bank and on presentment of the consignee's Airway Bills to the accused, the goods of the Invoice would be delivered to the notified party namely M/s.BANKCO S.A. by the accused. In other words, the petitioners were required to see that the said purchaser should get released the original Airway Bills from the Bank after making payment of consideration of the consignment to the said Bank and on presentment of the said original Airway Bills, the consignment was required to be delivered to the purchaser. #. It is further alleged in the said complaint that the accused persons by agreeing and accepting the invoice dated 29/04/1997 for goods material of Ladies Knitted T-shirts of the value stated hereinabove and promising and assuring the complainant by their Airway Bills dated 02/05/1997, induced the complainant deliver to and entrust to them the said goods material of the complainant on clear stipulation incorporated in their Airway Bills that the material would be delivered only on presentation and production of the Original Airway Bills and release order from the Bank of the notified party i.e. TO ORDER and was to be delivered to the notified party only thereafter. #. The complainant has also alleged in the said complaint that the accused persons carried the said consignments from Bombay to Paris. That, however, the complainant came to know that the said accused persons have delivered the said consignments to the said purchaser without production of Original Airway Bills release order obtained from their Bank on payment of the consideration of the said consignments. That this has been done against the clear understanding and agreement between the parties. It is further alleged that the accused persons were bound to see that Original Airway Bills and other relevant documents are produced before handing over of the consignments to the said purchaser. It is also alleged in the complaint that the said accused, their servants and agents have instead of discharging the aforesaid statutory duties and contractor obligations cast upon them, dishonestly delivered the said consignments to the said purchaser without receiving original documents. That by the aforesaid act, they have committed an offence punishable under Section 407 read with Sections 34 and 114 of the Indian Penal Code. #. On the receipt of the aforesaid complaint, the learned Magistrate recorded the verification of the complainant on oath and, thereafter, directed that the complaint be registered and summons be issued against the accused persons for the offence punishable under Section 407 of the Indian Penal Code. #. Feeling aggrieved by the aforesaid order of the learned Magistrate, the petitioners being one of the accused persons in the said complaint has come before this Court under Section 482 of the said Code. It has been contended here that it is not true that the goods were required to be delivered only on presentation of the Original Airway Bills. That even if, there was an agreement as alleged by the complainant, then also the present case would not be treated to be a case of criminal breach of trust. That the institution of the complaint by original complainant is an abuse of process of the Court, since at the best there would be a civil dispute between the parties not involving any ingredients of any criminal offences. That even the complaint does not disclose any offence and no offence is made out against the present petitioners. That the consignments in question are in fact delivered by the present petitioners to the purchaser and, there is no dispute about the said position, which clearly indicates that there is no question of criminal breach of trust. That the issuance of process in the said complaint on a mere reading of the complaint itself would vitiate the entire proceedings, as it indicates that at the best there would be a civil dispute between the parties not involving any ingredients of criminal offences. #. It is further alleged in this application that the consignment was given to the petitioners at Bombay for being delivered at Paris in France and, therefore, even if, some offence is committed, the Court at Ahmedabad cannot entertain the said complaint of the complainant. ##. On the aforesaid contentions, the petitioners have prayed that the present application of the present petitioners be allowed and the aforesaid complaint being Criminal Case No.2264 of 1998 be quashed and set aside. ##. On receiving of the aforesaid application, notice was issued. Mr.S.V.Raju, learned advocate appears for the original complainant and Mr.V.M.Pancholi, learned APP appears for the respondent - State. I have heard the learned advocates for the parties and have perused the papers. ##. So far as the entrustment of consignment is concerned, it is not very much in dispute. However, the present petitioners have attached a copy of the Original Airway Bills at page-15 to the present application. On the strength of the said Original Airway Bills, the learned advocate for the petitioners has argued at length that as per the said Airway Bills at page-15, the consignment was handed over to the consignee and, therefore, nothing wrong has been committed by the present petitioners. It is also argued that it was a statutory duty of the original complainant to prepare the airway Bills and in preparing the airway Bills, the aforesaid agreement "not negotiable" have been specifically introduced in the said airway Bills and, therefore, it was the duty of the petitioners to deliver the consignment in question to the purchaser without waiting for anything. ##. Let us accept that the airway Bills has been prepared by the original complainant and that airway Bills was in fact statutorily required to be prepared by the original complainant. At the same time, it is also a fact that on left hand side of the said Bills at page No.15, there is a clear indication that the consignment would be delivered TO ORDER. ##. Undisputedly, when there is an indication as "TO ORDER", the airway Bills becomes negotiable and there is no dispute that in that case that the present petitioners would not have delivered the consignment to the purchaser without following the contractual requirement. ##. It is true that on one hand, it is mentioned that the airway Bills will not be negotiable, on the other hand there is a mention of TO ORDER, both may not stand together simultaneously. ##. At this stage, it is required to be considered that as per the arguments of the learned advocate for the original complainant, the complainant has been dealing with the present petitioners since long. It is also submitted at the Bar by the learned advocate for contesting respondent that there was a very consistent and prolonged practise custom and usage of the business of air lifting of consignments of the complainant through the present petitioners. Learned advocate for the petitioners has also made it clear at the Bar that in all past dealings the present petitioners had collected the value of the consignment before handing over the consignment to the purchaser. It has also been made clear at the Bar by the learned advocate for contesting respondent that there is a consistent practise and custom that the goods was entrusted to the present petitioners for being carried from one country to another. That at the same time the original airway Bills would be sent to the concerned bank. That the purchaser would be required to pay the amount of the Bills to the Bank and on such payment, the Bank would release the original airway Bills to the purchaser. That on receipt of the said airway Bills the purchaser would submit it to the present petitioners and on presentment of the original airway Bills, the present petitioners would deliver the consignment to the purchaser. ##. During the course of arguments this aspect of the case has not disputed at all. Learned advocate for the petitioners has never argued that this was not a custom usage or practice for carrying the goods from one country to another. At the same time, it has not been made clear on behalf of the petitioners that as to why the said practice, usage or custom has not been followed in the present case. ##. The only contention raised by the learned advocate for the petitioners is that since the airway Bills was not negotiable, the present petitioners had delivered the consignment to the consignee and there was no criminal intention on the part of the present petitioners. ##. As stated above, when there was a consistent practice, usage and custom for effecting delivery of consignment as aforesaid, then there was nothing on record to show that as to why the said practice usage and custom have been bye-passed or as to why they have been given a go-bye by the present petitioners in the present case. ##. However, since there is a contention raised on both the sided as to the aforesaid agreement between the parties, it would be a matter of factual dispute which can be entertained and disposed of by the trial Court on appreciation of evidence only. This Court cannot go into disputed facts. It is more so, when similar other airway Bills have been produced on record and dispute has not been raised with respect to the said airway Bills. This would prima facie show that there was a practice usage or custom between the parties for the delivery of consignments as alleged by the original complainant. ##. Then it is useful to note here that this is not a simple case of delivery of consignment without any ingredients of any criminal offences. The original complainant has definitely alleged in so many words that this has been done dishonestly by the present petitioners. This would prima facie show that this was not a case of mere negligence or some error on the part of the present petitioners involving mere civil dispute between them. That in that case, the parties should be left to produce evidence before the trial Court on the point as to whether there was any dishonesty on the part by the present petitioners. When such disputed questions of facts are involved, then in that event a complaint filed before a Court or a FIR filed before a police station cannot be quashed by exercising inherent jurisdiction under Section 482 of the said Code. ##. Moreover, it is well settled that the complaint or FIR, as the case may be, is required to be read as a whole and if some offence is made out on a bare reading of the complaint itself then in that event, the complaint cannot be quashed very lightly. Quashing of a complaint, FIR would seriously and adversely affect the report of a complainant since his or her right to prosecute the other side would be brought to an end by exercising inherent jurisdiction under Section 482 of the Code for quashing the FIR or the complaint as the case may be. Therefore, while exercising inherent jurisdiction the Court must be extra vigilant and this kind of jurisdiction should be exercised very slowly. ##. In view of the aforesaid factual dispute, it would not be open to this Court to decide as to whether or not there was an agreement between the parties for carrying the goods from the Indian Territory and for delivering the same to a place away from the territory, only on production of the original Airway Bills, which could be had by the consignee only on payment of Bills amount. ##. Learned advocate for the petitioners has also come out with a case that the consignment was delivered to the petitioners at Mumbai and, thereafter, a consignment was actually delivered by the petitioners to the original consignee in a different country. Therefore, cause of action has not arisen at Ahmedabad for filing the present application at Ahmedabad. That, therefore, the complaint against the present petitioners are barred by the principles of territorial jurisdiction. ##. A question of jurisdiction may not be a pure question of law in all cases. In some cases factual aspects do arise and they are required to be taken into consideration. Therefore, it would not be proper on the part of this Court to quash and set aside the complaint in question without considering the aforesaid factual aspect of the case. In that event, this Court will not be able to appreciate the factual situation and, therefore, it cannot be said that the complaint is ex-facie barred on account of territorial jurisdiction. ##. It would be open to the original accused persons to raise this question of territorial jurisdiction before the trial Court when the trial commences and on appreciation of evidence before the trial Court, the trial Court will certainly decide the issue of territorial jurisdiction of the Court concerned. However, I am not inclined to allow the application and quash the complaint on the ground of jurisdiction. ##. Learned advocate for the petitioner has also argued at length that the consignment was required to be delivered to the consignee and the petitioner has delivered the consignment to the consignee and, therefore, no offence can be said to have been made out, in view of the provisions of Section 10 of the Carriers Act, 1865. In support of such an argument, the learned advocate for the petitioner has shown a decision of this Court in the case of Saurashtra Ceramic Industries & Anr. v. Sadhana Transport Co., reported in 1998 (3) GLR 1929. On going through the said decision, it becomes clear that the said decision will not apply on the facts of the case before us. It is required to be considered that the said matter was disposed of by this Court on appreciation of the provision made in Section 10 of the Carriers Act, 1865. It is also required to be considered here that in the present case, there is a clear allegation in the complaint itself that the present petitioners have acted dishonestly. The said averment does not appear to have been raised in the case under citation and, therefore, also the said decision cannot come to the rescue of the petitioners. ##. Learned advocate for the petitioners has cited good number of decisions in support of his arguments. It would be worthwhile to refer to the same in a brief manner so as to complete the judgment. ##. The first decision shown by him is in the case of Trilok Singh and others v. Satya Deo Tripathi, reported in AIR 1979 Supreme Court 850. The said decision apparently refers to a hire purchase agreement wherein there was a clear stipulation that in case of default in payment of instalment, the vender will be at liberty to take possession of the property covered by the hire purchase agreement. Therefore, it was held that when the possession of the said property was taken by the vender in accordance with the hire purchase agreement, it could not be treated a criminal action on the part of the vender against the purchaser. ##. Another decision referred to by the learned advocate for the petitioners is in a case of Hari Prasad Chamaria v. Bishun Kumar Surekha and others, reported in AIR 1974 Supreme Court 301. It was a case for an offence punishable under Section 420 of the Indian Penal Code. In that case, the appellant intending to start business, gave in full faith a large amount to respondents for the same. The respondents started business in their own name and refused to render accounts or return money. A question arose as to whether the respondents could be criminally liable under Section 420 of the Indian Penal Code. On appreciation of fact, the Hon'ble Supreme Court found that even assuming, prima facie all the allegations in the complaint to be true, they merely amount to a breach of contract and could not give rise to criminal prosecution. Here it is to be seen that as said above, there is a clear allegation of dishonest dealing made in the complaint, which shows that there is some averment of criminal action alleged against the petitioners and it may be a case of some sort of a foul play between the petitioners and the consignee. It is true that the consignee is not made an accused, nevertheless, the fact remains that the averments of dishonest act has been alleged in the complaint itself. Moreover, it is noted that the petitioners as well as respondents have been dealing with similar transaction since long and there is an allegation that there was usage, practice, convention and tradition, that the goods would be entrusted to the consignee only on production of the original Airway Bills by the consignee. Undisputedly, the consignee could get original Airway Bills, only when the consignee clears the dues of the said consignment through the Bank and the Bank would release the original Airway Bills only when the consideration of the said consignment, is cleared by the consignee. When the parties have been dealing with in this field with the aforesaid mutual understanding, consent, conventions, traditions and trade usage, then in that case, it is not explained and hence that understood as to why the present petitioners took a different way while dealing with the consignment in dispute. Therefore, such a factual dispute can be entertained only on appreciation of evidence. Therefore, at present, it cannot be said here at the point that there is a simple civil dispute between the parties involving no criminal ingredient at all. ##. In P.K.Das and others v. Jaysukhlal Mahashanker, reported in 1983 (2) GLR 941, again it has been said that while issuing summons or bailable warrants, the Court should apply its mind in order to ascertain if any criminality has been involved in the complaint itself. ##. In Madhavrao Jiwaji Rao Scindia and another etc. v. Sambhajirao Chandrojirao Angre and others, etc. reported in AIR 1988 Supreme Court 709, the matter related to criminal breach of trust. However, the High Court, while quashing the criminal proceedings in exercise of the powers under Section 482 of the Code, observed that the alleged breach of trust constituted only civil wrong and the said decision was upheld by the Supreme Court. When allegations themselves lead, us to believe, prima facie, that there is only civil wrong then in that event, naturally, the complaint has to be quashed without any hesitation. In the present case, the facts are different and, therefore, the said decision will not apply to the fact of the case before us. ##. In State of U.P. v. R.K.Srivastava, reported in AIR 1989 Supreme Court 2222, it has been clearly observed that the FIR on its face value did not constitute any offence and, therefore, the criminal proceeding instituted on the basis of such FIR was found to be liable to be quashed. When the FIR itself does not lead to any criminal offence then in that event, the Court has no option but to quash the proceedings on the basis of such FIR. ##. In Nageshwar Prasad Singh alias Sinha v. Narayan Singh and another, reported in (1998) 5 Supreme Court 694, again, it was a matter of dispute of civil nature and, therefore, the criminal proceedings were quashed. ##. In M/s.Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, reported in AIR 1998 Supreme Court 128, the complaint was filed for the offence punishable under the provision of Prevention of Food Adulteration Act. On appreciation of the fact enumerated in the complaint, no material was found to show that the appellant accused were manufacturers holding licence for manufacture of offending articles and, therefore, the complaint and preliminary evidence made out no case against appellant-accused and, therefore, the complaint was liable to be quashed. This was again a matter disposed of on appreciation of the allegations made in the complaint and, therefore, it involved question of fact alleged in the complaint itself. The matter has not been disposed of on any principles of law. ##. In Central Bureau of Investigation, New Delhi v. Duneans Agro Industries Ltd., Calcutta, reported in AIR 1996 Supreme Court 2452, again the matter involved civil dispute and, therefore, the criminal complaint was required to be quashed. ##. In Narendra Pratap Narain Singh and another v. State of U.P., reported in AIR 1991 Supreme Court 1394, the prosecution case of forging bills and receipts and using them as genuine was not held to be true by High Court and the amount in question was deposited by the accused persons before investigation. Therefore, it was found that the charge for the offence punishable under Section 409 of the Indian Penal Code could not be sustained. This was a matter disposed of on appreciation of fact situation in that particular case. ##. In Meeta Jain v. State of Gujarat and another, reported in 1998 (2) GLR 1057,