2008 Supreme(Bom) 382

IN THE HIGH COURT OF BOMBAY
P.V.HARDAS & S.P.KUKDAY,JJ.
Astec LifeSciences Ltd. & ors. – Petitioners
Versus
State of Maharashtra & ors. – Respondent
CRIMINAL WRIT PETITION NO.1222 OF 2007 CRIMINAL WRIT PETITION NO.460 OF 2007
Decided On : 12-3-2008

Headnote:Constitution of India, 1950 - Articles 226 and 227-Criminal Procedure Code, 1973, Section 482-Judicial review-Power of-Supervisory power of High Court under Article 227 of Constitution is administrative as well as judicial in nature-High Court having powers of judicial review can exercise jurisdiction under Article 226 of Constitution or under Section 482 of Cr PC to prevent abuse of process of Court-Such process to be sparingly exercised in interest of justice.-Present petition is filed under Article 227 of the Constitution for quashing First Information Report filed by respondent No. 3 for the offences punishable under Sections 406, 420, 468 and 471 read with 34 of the Indian Penal Code. The High Court has powers of judicial review and can exercise extraordinary jurisdiction under Article 226 of the Constitution or under Section 482 of the Criminal Procedure Code to prevent abuse of the process of the Court or otherwise to secure ends of justice. Supervisory power of the High Court under Article 227 of the Constitution is not merely administrative but is also of judicial nature. These powers are to be sparingly exercised primarily to prevent abuse of the process of the Court. In any appropriate case there is no bar for the High Court to treat the petition filed under Article 226 to be one under Article 227 of even under Section 482 of the Code of Criminal Procedure, if it is necessary to do so in the interest of justice.

       Criminal Procedure Code, 1973 - Sections 154 and 482-Constitution of India, Article 226-Quashing of FIR-Inherent powers of High Court-FIR or complaint can be quashed by High Court in exercise of its powers under Article 226 of Constitution or under Section 482 of Cr PC where manifestly proceeding actuated by malice.-In the present petition the petitioners seek quashing of the complaint filed by respondent No. 3 mainly on the allegation that the petitioners resorted to criminal breach of trust and cheating by supplying substandard insecticide. The High Court can quash an FIR or a complaint in exercise of its powers under Article 226 of the Constitution or under Section 482 of the Criminal Procedure Code if the allegations found in the FIR or the complaint taken at their face value and accepted in its entirety does not prima facie disclose commission of a cognizable offence or make out a prima facie case against the accused or where manifestly the proceeding actuated by malice.

       Criminal Procedure Code, 1973 - Section 482-Penal Code, 1860, Sections 406, 420, 468 and 471-Breach of trust or forgery or cheating-Not proved-FIR-Quashing of.-In the absence of the averment that the stamping was done with dishonest or fraudulent intention to cause loss or damage or for inducement to secure a contract, it is difficult to envisage how the allegations of forgery can be substantiated. Careful consideration of the material on record would show that Astec had regular dealing with Nath Bin-genes and had no necessity to resort to the device of fabricating the invoice. In the light of the facts of the present case, as none of the ingredients of forgery are satisfied even at the prima facie stage, it is not possible for us to subscribe to the view that use of the rubber stamp of Astec Life Sciences on the invoice does amount to forgery of the invoices issued by the petitioners.

       In the light of the fact that Astec Life Sciences had series of dealing with Nath Bio-genes and that only one batch of Imidacloprid was found to be of inferior quality, the averments of the FIR do not disclose commission of cognizable offence, even if they are assumed to be true. In the light of this finding FIR filed by respondent No. 3 deserves to be quashed.

       Penal Code, 1860 - Section 406-Criminal breach of trust-Ingredients of-Failure to account or breach of contract-Not amounts criminal breach of trust-Dishonest can amount to an offence of criminal breach of trust.-Criminal breach of trust involves dishonest misappropriation by a person in whom the trust is reposed as to the custody or management of the property in respect of which breach of trust is alleged. Essential ingredients of the offence are :

       (i) a person should have been entrusted with the property or dominion over the property;

       (ii) said person should dishonestly misappropriate or convert to his own use that property or dishonestly use or dispose off that property or willfully suffer any other person to do so;

       (iii) that 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 a person has made touching discharge of such trust. The offence consists of one of four positive acts to witnesses misappropriation conversion user or disposal of property. Neither failure to account nor breach of contract however dishonest can amount to an offence of criminal breach of trust.

       Penal Code, 1860 - Sections 406 and 420-Criminal Brach of trust-Cheating-Commercial transaction-Sale/purchase of goods-Certain breach of provisions of contract Exercise Act, Insecticides Act, Licence Related Act etc. by seller of goods-Not amount to either cheating or criminal breach of trust in absence of dishonest intention.-In the light of the fact that Imidacloprid from one batch was indeed of inferior quality and the fact that there was sufficient bank balance in the bank account of Nath Biogenes no motive can be attributed to the respondent No. 3. In the case of a commercial transaction distinction between civil liability and criminal liability is very subtle. The questionable act may amount to a civil wrong and a criminal offence. In such a case the aggrieved person can pursue civil and criminal remedies available to him. However if the act is predominantly a civil wrong it is not permissible to institute criminal proceeding against the adversary, for presurizing him. Court is not oblivious to the predicament of respondent No. 3. However though the circumstances of the present case do not justify launching of a criminal prosecution, it is open for respondent No. 3 to have recourse to the civil remedies available to it for the purpose of redressal of its grievances. Counsel Shri D.V. Soman has referred to the fact that Astec Chemicals had no licence to manufacture Imidacloprid and the licence of Astec Life Sciences was suspended by Deputy Director of Agricul-ture, Thane Division with effect from 30th August, 2005 to contend that concealment of this fact by the petitioners does indicate existence of dishonest intention. Court is not inclined to sustain this contention in view of the absence of material to suggest that concealment on the part of the petitioners was with an intention to cause loss or damage to respondent No. 4 breach of the provisions of Central Excise Rules, 2002 or for the breach of Section 20 of the Insecticide Act, 1968 may visit petitioner company with penal consequences, but the infraction of these provisions does not amount to either cheating or criminal breach of trust.