1971 Supreme(SC) 627

SUPREME COURT OF INDIA
P. JAGANMOHAN REDDY AND D.G. PALEKAR, JJ.
M. N. Sankaranarayanan Nair, Appellant
Versus
P. V. Balakrishnan and others, Respondents.
Criminal Appeal No. 12 of 1969, D/- 26-11-1971.
Advocates appeared
Mr. A. Sreedharan Nambiar, Advocate, for Appellant; Miss Lily Thomas, Advocate (for No. 2) and Mr. A. G. Pudissery Advocate (for No. 3). For Respondents.

Headnote:

Indian Penal Code,1860 - Sections 467, 478 and 420 ,109,193,477,120-A,207-A - Criminal Procedure Code 1973 - Section 494 - Essential Services Maintenance Ordinance 1968 - Sections 4 and 5 -. Cheating and dishonestly inducing delivery of property – Appeal Against Conviction - Appellant who was Managing Partner of Transport Company Calicut filed a Criminal Miscellaneous Petition on High Court of Kerala against order of Assistant Sessions Judge according permission to Public Prosecutor for withdrawing from prosecution - Agent of Transport Company of one of its Branches namely at Baliapattom and in that capacity it was one of his duties to accept goods from Public for transporting them by lorry service of Company and issue Way Bills - These Way Bills contained an undertaking that in event of any of Banks discounting them and if goods are lost or damaged during transport Transport Company will be responsible to Bank - It is alleged that Respondent - Sued nine Way Bills on different dates in favour of Respondent - As if goods were received but in fact no such goods were accepted for transport nor were any such goods dispatched - These Way Bills were duly discounted by second Respondent consigner who drew about against them from his Bank - This fraud was detected on a check made by General Manager of Transport Company Kozhikode and it appears that accused executed an agreement in favour of Transport Company undertaking to make good the loss suffered by it after which he was suspended on 10-4-63 - Whether any and if so - What offence could be disclosed - Whether there was a case for committal - Whether case is one in which permission of Court to withdraw from prosecution ought to have been asked for - Whether prosecution in likely to end in conviction as interfering with even and ordinary course of justice - Held, Court also while considering request to grant permission under said Section should not do as a necessary formality - Grant of it for mere asking - It may do so only if it is satisfied on materials placed before it that grant of it subserves administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with vindication of law which executive organs are in duty bound to further and maintain - Prosecution had produced a letter alleged to have been written by Respondent to Respondent requesting him to issue way bills a reading to which Magistrate said shows that it was a letter written with intention of obtaining them - In this view he thought that there was a prima facie case against accused and accordingly he framed charges - High Court ignoring view taken by it in its previous two Revisions referred to earlier that there was prima facie case and that there was prima facie case and that there was no illegality in prosecution thought that Public Prosecutor was right when he applied to Court for sanction to withdraw prosecution on ground that it might not result in a conviction to which it further added that there was a long delay of five years and that witnesses were not in locality and have to be brought to Court from different places - Though a thought that this latter reason may not justify abandonment of prosecution but nevertheless it said that in view of practice prevailing in this Transport Company as well as in other Transport Companies chances of successful prosecution were remote - It further thought that question of expenses would also become relevant - Court think that these grounds are flimsy and do not justify granting of permission to withdraw from prosecution - In first place there is nothing to indicate what practice was, how it was resorted to and what elements were deficient to constitute offences for which Respondents were entitled to be charged and in second place nothing had happened since committal order except that several revisions filed by Respondent 1 and Respondent 2 had delayed trial which delay by itself cannot be made a ground for according permission - Appeal allowed