TMI Blog2023 (1) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand . A mere wrong demand or claim would not meet the conditions specified by Section 405 of the Indian Penal Code in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. In the present case, the ingredients to constitute an offence Under Section 420 read with Section 415 of the Indian Penal Code are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415 of the Indian Penal Code. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent No. 2 - complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ba - Regional Sales Manager - North (Decorative), and Sanjay Ramachandran Nair - Sales and Marketing Director (Decorative), takes exception to the order dated 30th March 2022, whereby the High Court of Judicature at Allahabad has dismissed their petition Under Section 482 of the Code of Criminal Procedure, 1973 For short, the 'Code'., challenging the summoning order dated 19th July 2018 passed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh, the operative portion of which, reads as under: On the basis of evidence available on records and on the basis of statement of Complainant, the charge is appearing prima facie regarding showing forged demand of Rs. 6,37,252.16 against the Complainant by the Opponents Manager Jotun India Pvt. Ltd. Delhi, Chief Manager Jotun India Pvt. Ltd. Andheri East, Mumbai. Hence, the Opponents Manager Jotun India Pvt. Ltd. through Chief Manager Jotun India Pvt. ltd. Andheri East, Mumbai is liable to (be) summoned for trial in Section 406 Indian Penal Code for trial prima facie. (emphasis supplied) 2. Interestingly, in the cause title of the private complaint filed by Shubhankar P. Tomar, the proprietor of Adhunik C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by JIPL. In such situations the dealer had option to act as an intermediary. The agreement has several clauses relating to prices, invoice and payment. For the purpose of this decision, we are not required to examine and decide these controversies and disputes. for supply and purchase of decorative paints in the State of Uttar Pradesh and Delhi region respectively. 5. On 27th September 2016, JIPL filed two separate criminal complaints Under Section 138 of the Negotiable Instruments Act, 1881 For short, the 'NI Act'. against Shubhankar P. Tomar, on account of dishonour of cheque No. 463151 drawn on Canara Bank, Patparganj Branch, Delhi for Rs. 4,99,610/-, and cheque No. 003252 drawn on HDFC Bank, Chander Nagar, Ghaziabad, Uttar Pradesh for Rs. 1,93,776/-, both dated 8th August 2016. As per the complaints, the cheques were drawn by Respondent No. 2 - complainant for discharge of the outstanding amount payable by him to JIPL. The cheques on presentation were dishonoured due to 'insufficient funds' vide memo issued by the respective banks on 12th August 2016. Thereupon, legal notice of demand was issued on behalf of JIPL by speed post and courier on 20th August 2016, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 2 - complainant, was sent by JIPL to Manav Rachna International directly. Another bill of Rs. 52,000/- was issued in the name of Respondent No. 2 - complainant, but they were not concerned whatsoever with the said bill. The bills issued were paid by Respondent No. 2 - complainant by bank transfer to JIPL. Respondent No. 2 - complainant was falsely billed to the extent of Rs. 2,00,000/-. Dhiraj and Saurabh Gaur of JIPL had also forged a bill of Rs. 4,33,633.47p. Respondent No. 2 - complainant had protested by e-mail on 2nd December 2014 and several reminders were sent thereafter. Respondent No. 2 - complainant had thereupon informed JIPL on 13th July 2015 and 19th August 2015 that 242 buckets of 20 litres and 4 litres were available and should be taken back and adjusted against the outstanding amount. However, no reply was received in spite of reminders. E-mails were also written on 4th January 2016 and 11th January 2016. Since there was no response from JIPL, Respondent No. 2 - complainant had written letters to Jotun S/S and Orkala ASA, the shareholders of JIPL. They had also sent a registered notice to JIPL stating that Rs. 6,37,252.16p., shown as outstanding amount d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - complainant had filed photocopy of one e-mail as per documents 1 to 34, but the narration and the contents of the e-mail is not adverted to and elucidated. 11. In case of a private complaint, the Magistrate can issue summons when the evidence produced at the pre-summoning stage shows that there is sufficient ground for proceeding against the Accused. The material on record should indicate that the ingredients for taking cognizance of an offence and issuing summons to the Accused is made out. Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547; Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609; and Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749. Proviso to Section 200 of the Code is not applicable in the present case. 12. In the present case, the trial court did not issue summons Under Sections 420 and 471 of the Indian Penal Code, or for that matter, invoke the provision relating to conspiracy Under Section 120B of the Indian Penal Code. Although the summoning order dated 19th July 2018 does not deal with these Sections of the Indian Penal Code, we deem it imperative to examine the ingredients of the aforesaid sections, and Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust. (f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust. (Explanations 1 and 2 and illustrations (a) and (e) to Section 405 of the Indian Penal Code are excluded, as they are irrelevant.) For Section 405 of the Indian Penal Code to be attracted, the following have to be established: (a) the Accused was entrusted with property, or entrusted with dominion over property; (b) the Accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415 of the Indian Penal Code is fraudulence , dishonesty , or intentional inducement , and the absence of these elements would debase the offence of cheating. Iridium India Telecom Limited v. Motorola Incorporated and Ors. AIR 2011 SC 20. Explaining the contours, this Court in Mohd. Ibrahim and Anr. v. State of Bihar and Ors. (2009) 8 SCC 751. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent No. 2 - complainant. We respectfully concur with the clarification as well as the ratio explaining Section 415, 464 etc. of the Indian Penal Code., observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the Accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electronic signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. It is argued that had Respondent No. 2 - complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as Respondent No. 2 - complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for the offence Under Section 471 of the Indian Penal Code. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre-summoning evidence. For completeness, we must record that the Appellants have placed on record the dealership agreement dated 11th April 2012, which, inter alia states that JIPL has a discretion to establish direct contractual relationship with specific customers, if JIPL feels they can be served better. Further, in such a situation, the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had wrongly recorded Respondent No. 2 - complainant as the buyer, it is not doubted that Manav Rachna International was the consignee. At best, Respondent No. 2 - complainant would not be liable, had Manav Rachna International failed to pay. Non-payment is also not alleged in the complaint or the pre-summoning evidence. Reliance on objections vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Limited and Ors. v. K.M. Johny (2011) 13 SCC 412, as it refers to earlier case laws in copious detail. In Thermax Limited and Ors. (Supra), it was pointed that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the Accused the Magistrate is not required to record detailed reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate had deemed it appropriate to issue non-bailable warrant. The non-bailable warrant was not issued in the name of any person but by designation against the Chief Manager JIPL, Andheri East, Mumbai. This was also one of the reasons that had prompted the Appellants to the file the petition Under Section 482 of the Code. 24. We must also observe that the High Court, while dismissing the petition filed Under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge. Birla Corporation Limited (Supra); Mehmood Ul Rehman (Supra); R.P. Kapur v. State of Punjab AIR 1960 SC 866; and State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335. Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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