TMI Blog2007 (10) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the petitioner to the original consignee but the same allegedly was rejected on the ground of being inferior in quality. Goods are said to have been delivered to M/s. Fashionette Industries Ltd. Complainant-Respondent issued a notice to the accused persons as also the aforementioned Walford Meadows and M/s. Universal Apparels stating : That with utter disregard to the procedures and practice prevalent internationally, and being fully conscious of the consequences of delivering the consignments without production of the Bills of Lading, you M/s. Walford Meadows Ltd., as agents of the Carrier at Mombassa Ltd. effected delivery of the consignments covered under the aforesaid original bills of lading to the consignees, without their producing the Bills of Lading. That my clients are shocked at your act of negligence, which is contrary, violative and in breach of your duties under the Contract and Law. 4. Negligence was, thus, attributed to the agencies in delivering the cargo without the original Bill of Lading. It was also alleged that the carriers and their agent have committed a breech of carriage and acted in violation of their contract and obligation. A claim for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall come back to you with full details upon receiving reply from Universal Apparels. Cargo was released without Bank Guarantee. 8. A bare perusal of the aforementioned letters/notices would clearly indicate that no allegation had been made at the material time that it was the appellant who had caused delivery of the goods. 9. It is furthermore not in dispute that a suit has been filed by the respondent herein in the Original Side of the Bombay high Court which has been marked as suit No.1861 of 1997. 10. In the said suit, the following have been arrayed as defendants : 1. ACE Lines Ltd. a company Incorporated under Foreign Laws, Having its office at 29 Bis Mere Bathelemy Street, Port Louis, Mauritius. 2. All Cargo Container Lines Ltd. A company incorporated under Foreign laws having its office at 29, Bis Mere, Bathelemy Street, Port Louis Mauritius. 3. All Cargo Movers (India) Pvt. Ltd. A company incorporated in India Under the Companies Act, 1956 And having its office at 204, National Insurance Building, Dr. D.N. Road, Bombay 400001. 4. M/s Walford Meadows Limited, A company incorporated under Foreign Laws having its office at 1st American Bank Bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed offences punishable u/s.407, 34 and 114 of I.P. Code. By issuing their said Bills of Lading in acceptance and compliance of the complainants invoices, the accused represented, assured and induced the complainant to believe that the complainant s goods material delivered to the accused by the complainant would be delivered by the accused to the receiving party only TO ORDER i.e. only on the presentation of original bills of Lading to the party receiving the delivery of the goods material. If the accused had not to represented assured and induced the complainant, he would not have risked his gods material of the value of US$ 98,715.29 (i.e. ₹ 38,49,896.31 at dollar rate about ₹ 39/-) to be delivered to the accused. Thus, the accused have in abetment and concert of each other, cheated the complainant and committed offences u/s 420, 34 and 114 of I.P. Code. 13. Agent of the Kenyan counterpart of the petitioner, namely M/s. Walford Meadows Ltd. against whom allegations have been made that it had delivered the consignments to the assignee without original bills of lading had not been made an accused. 14. A bare perusal of the complaint petition would show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice. 18. In G. Sagar Suri Anr. v. State of U.P. Ors. [(2000) 2 SCC 636, this Court opined : 8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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