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TMI Blog2022 (1) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietor of M/s. Tea Mech (India) (in short 'the Tea Mech'), which is engaged in business of manufacture and supply of engineering goods and processing machinery for tea, sesame, nuts, grains industries. The petitioner is also working as a Managing Agent for logistics in grain based distillery. 4. M/s. Brahmaputra Biochem Pvt. Ltd. (in short 'the BBPL'), having its registered office at Jaipur and corporate office at Mumbai, had entered into a business relationship with Tea Mech, and to carry on such business relation, a Contract/Agreement of Managing Agency was entered between the BBPL and Tea Mech on 16.01.2015, containing various terms and conditions. 5. The BBPL independently placed order along with attached commodity trade agreement with various suppliers and traders after negotiation, agreement and fixation of price, which facilitated by the petitioner. The payments were effected by the BBPL to the suppliers and traders. No payment towards purchase of grains against purchase orders were ever made to Tea Mech Company/the petitioner Company. According to the petitioner, Tea Mech had outstanding dues recoverable from BBPL in pursuance of the said agreement and on account of and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the entire incident that had occurred and prayed for justice and to take necessary steps against the accused persons. Thereafter, the petitioner filed a complaint before the court being C. Case No. 2640/2017 under Sections 143/323/341/386/506/120B/34 of the IPC and the learned court at Alipore finding prima facie case against the accused, initiated the case and the issued process regarding such criminal acts and conduct. Further, it is contended that after such incident, the petitioner's health has been severely impacted being a CABG (heart bypass) patient with present unstable heart condition and severe diabetes. Petitioner also sent a notice, invoking arbitration proceedings pursuant to notice dated 19.08.2017 for appointing arbitrator in terms of the said agreement, which was accepted by BBPL although had not agreed with the selection of the arbitrator. 8. Thus, it is contended that allegations in the FIR do not constitute any ingredient of the offence alleged. Furthermore, in view of the arbitration clause in the agreement between the parties, criminal proceeding is not maintainable and it has been filed mala fide by the informant, with a view to harass the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Respondent no.1 has also filed written objection against the allegation made by the petitioner's side, about the conduct of the police officials of the CID Department. Superintendent of Police, CID in his reply/objection denying the allegation by the petitioner, has submitted that on the basis of the written FIR filed by the informant on 01.02.2017, CID P.S. Case No. 3/2017 was registered and one Arup Kr. Mahanta, Inspector of CID was entrusted with the investigation. It is stated that as the major part of the investigation is centered at West Bengal, hence a team consisting of Sri Nirmal Baishya, APS, Addl. S.P., CID Assam along with other officers of CID, were deputed for investigation in connection with the case. Accordingly, the aforesaid team with the I/O of the case proceeded to Kolkata on 31.07.2017 for investigation. On arrival, the team visited the office of the Commissioner of Police, Kolkata, Addl. Director of Police, CID, West Bengal, Kolkata and discussed the case in details. After discussion, the team was divided into two smaller teams. One team consisting of the I/O Insp. Arup Mahanta with Addl. S.P. Sri Nirmal Baishya and Inspector Manzoor Ahmed proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ajay Haldia and both of them i.e. Ajay Haldia and Arjun Arora had a brief discussion between them. It is stated that the CID team identified themselves before the petitioner and the team was assisted by police personnel of local police station. Further, it is contended that both criminal proceeding and civil proceeding can proceed simultaneously if there is any ingredients of the criminal offence and whether there is any ingredients or not it can be ascertained only after thorough investigation of the case. Here in this case, the investigation could not progress further due to the stay order passed by this Hon'ble Court. The object of the criminal jurisprudence is to punish the offender, who commits any offence against any persons, property or the state. Pendency of civil matter or availability of civil remedies is not a bar for initiating criminal proceeding. Both the proceeding can run simultaneously and parallely. FIR of the CID P.S. case No. 07/2017 prima facie discloses commission of a cognizable offence under Section 406/408/420 IPC. There is no abuse of process if the investigation of the case is allowed to progress. Hence, invoking of Section 482 CrPC by this Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant facts, i.e. about the claim made by the petitioner, about the arbitration clause and the agreement and all about earlier communication between the parties, is bad in law inasmuch as if fails to disclose the commission of any cognizable offence save and except some civil liability. Submission has been made at length that the informant by unfair means has pressurized the petitioner to fulfill their claim one-sidedly, without resorting to decide the matter in lawful manner by invoking the arbitration clause in terms of the written agreement. Further, it is contended that the conduct of investigating agency also a reflection of highhandedness of the informant company and in view of all above, the entire proceeding is required to be quashed and set aside. 20. Learned Senior Counsel for the respondent Mr. K.N. Choudhury per contra has submitted that there is no illegality in registration of the FIR upon receipt of the FIR of a cognizable offence and there is no absolute bar to initiate a criminal proceeding, even if there is civil liability. Reliance has been placed from the decision of M/s. Medchl Chemicals & Pharma P. Ltd. -vs- M/s. Biological E. Ltd. & Ors., (2000) 3 SCC 269 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company's fund against promising supply of grains. For M/s Brahmaputra Biochem Pvt. Ltd.," 23. From the plain reading of the FIR, it reveals that the informant has alleged that the petitioner company has taken certain amount for supply of grains in terms of the agreement entered into between the parties, but neither grains was supplied nor money was returned. The said conduct of the petitioner company is stated to be a breach of trust by cheating. Although the FIR was filed on 01.02.2017, but they have not disclosed certain facts which goes to the root of the matter. Firstly, there is no whisper about the claim made by the petitioner's side that was made much earlier of the filing of the FIR that is on 05.09.2016 neither there is any mention about the terms and conditions of the agreement including that there is a clause for arbitration to settle the dispute through arbitration. As it was a commercial transaction between the parties, it was incumbent on the part of the informant/respondent side to settle the dispute in terms of the agreement rather than to flout such agreement and resort to criminal proceeding. From the various admitted communication between the parties vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 415 defines cheating and the ingredients of the cheating is as follows: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.-A dishonest concealment of facts is a deception within the meaning of this section. The section requires - (1) deception of any person, (2)(a) fraudulently or dishonestly inducing that person (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property, or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property." 27. The section comprises two separate set of Acts which the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Undoubtedly, it is settled proposition of law that the complaint must disclose necessary ingredients of the offence. Turning to the present case in hand, as mentioned above, the FIR failed to disclose the necessary ingredients of either of the offences under Section 406 and 420 IPC. There is nothing to show that the petitioner had the dishonest intention at the time of execution of the agreement between the parties and their subsequent conduct for raising a claim for certain amount of money would not amount to cheating as indicated above. It is also noted from the materials on record there is nothing to hold that any property was entrusted to the petitioner which he dishonestly converted to his own use so as to satisfy the ingredients of Section 405 IPC punishable under Section 406 IPC. Both the parties in clear terms has entered into an agreement to carry their business/commercial transaction and both the parties has now raised claim and counter claim against each other and in the fitness of the matter, such a dispute is to be resolved by way of arbitrator in terms of the agreement. Such a criminal proceeding would be nothing but an abuse of a process of court. 32. This Court d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, the present case, in my considered view, warrants interference, inasmuch as the ingredients of the offence of cheating punishable under Section 420 and the other offences 406/408 of IPC has not been made out in the FIR. That being the position, the case comes within the purview of the first category of the observation in State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335 wherein it has been held that where the allegation made in the First Information Report or the complaint, even if they are taken at their face value, and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, the power under Section 482 CrPC can be invoked. As discussed above and the present case, reading the averment in the FIR in its entirety, the ingredients of intentional deception on the part of the accused at the beginning of the negotiations/agreement has neither been expressly stated or indirectly suggested in the complaint. All that respondent/informant has alleged that petitioner did not supply the grains nor return the advance money. Thus, key ingredients of dishonest intention in order to deceive the informant is not made out, even acceptin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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