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IN THE HIGH COURT OF GAUHATI
A.K. Goswami, J.
Basant Kumar Agrawal - Appellant
Vs.
State of Assam - Respondent
WP(C) 7911 of 2016
Decided On : 19-06-2018
Constitution of India, 1950 - Constitution Forty-second Amendment Act, 1976,- Clause (1-A) - Article 226(2) - Criminal Procedure Code, 1973 - Section 181(4) - Indian Penal Code, 1860 - Section 406 ,420 , 405, 406 and 415 - Territorial jurisdiction - Quashing of FIR - Consignment of goods - Petitioners pray for quashing of FIR registered as Police Station Case and pray for a direction to transfer investigation of Police Station Case from State of Bihar to State of Assam and at very outset it will be appropriate to say that in affidavit filed by respondent as in affidavit filed by respondent preliminary objection is taken with regard to maintainability of petition on ground that this Court does not have territorial jurisdiction to entertain petition and at same time arguments have also been advanced on merits of case and FIR lodged by an employee of respondent with allegation that in year petitioner who is partner of petitioner had placed an order for two trucks of iron rod with respondent and one truck of iron rod weighing MT and As per bills raised total value of goods came to be Rs when payment was sought for petitioner only assured to make payment but did not make any payment and a cheque for Rs was issued which was enchased and some more cheques were issued by petitioner were not honored on ground that cheques exceeded arrangement - Held, Expression entrustment thus carries with it implication that person handing over any property or on whose behalf that properly is handed over to another continues to be its owner and person handing over property must have confidence in person taking property so as to create a fiduciary relationship between them and viewed in that context transaction of sale cannot amount to an entrustment as after delivery seller has neither any right nor dominion over property and case set out in FIR was sale of iron rod and there was no entrustment within meaning of Section IPC and ingredients of Section IPC are palpably absent in FIR and Ingredients of cheating are (i) deception of a person either by making a false or misleading representation or by other action or omission and (ii) fraudulent or dishonest inducement of that person to either deliver any property to any person or to consent to retention thereof by any person or to intentionally induce 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 and it is stated that fraudulent or dishonest inducement on part of accused must be at inception and not at a subsequent stage to attract Section read with IPC and there is not even a whisper in FIR that there was any fraudulent and dishonest inducement on part of accused which led to dispatch of goods and it is also noticed from FIR that order for two trucks of iron rod was placed at a time and respondent had initially dispatched one truck and second lot of iron rod was sent in another truck later on and it is not that as submitted by that after receipt of one truck of iron rod order for another truck of iron rod was placed and it is clear and apparent that consignments were dispatched in view of long standing business association in between petitioners and respondent and allegations even if accepted at their face value in their entirety do not constitute any offence of cheating and as allegations made in FIR prima facie do not constitute any offence of Section IPC against petitioners which is registered as Police Station Case is quashed no cost - Writ petition is allowed
A.K. Goswami, J.
Heard Mr. R. Dubey, learned counsel for the petitioners. Also heard Mr. S.R. Barua, learned State counsel appearing for respondent Nos. 1 and 2, Mr. S.K. Sarkar, learned counsel appearing for respondent No. 6 and Mr. P.P. Dutta, learned counsel appearing for respondent Nos. 3, 4 and 5.
2. Though the petition is styled as one under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), Mr. Dubey, at the outset, submits that this petition may be taken to be one under Article 226 of the Constitution of India.
3. By this writ petition, the petitioners pray for quashing of the FIR dated 24.5.2016 registered as Lakhisarai Police Station Case No. 255/2016 and, alternatively, pray for a direction to transfer the investigation of Lakhisarai Police Station Case No. 255/2016 from the State of Bihar to the State of Assam.
4. At the very outset, it will be appropriate to say that in the affidavit filed by the respondent Nos. 3, 4 and 5 as well as in the affidavit filed by respondent No. 6, preliminary objection is taken with regard to maintainability of the petition on the ground that this Court does not have territorial jurisdiction to entertain the petition. At the same time, arguments have also been advanced on the merits of the case.
5. An ejahar was lodged by an employee of the respondent No. 6 with the allegation that in the year 2013, the petitioner No. 1, who is the partner of petitioner No. 2 herein, had placed an order for two trucks of iron rod with the respondent No. 6. One truck of iron rod weighing 19.960 MT and valued at Rs. 7,09,144/- was transported to the godown of the petitioner No. 2 at Guwahati. On request being made to make the payment, it is alleged that the petitioner No. 1 informed that he would make payment after receiving one more truck of iron rod and that the payment would be made at a time. Consequently, one more truck of iron rod weighing 20.01 MT and valued at Rs. 7,10,920/- was dispatched which was also delivered at the godown of petitioner No. 2 at Guwahati. As per the bills raised, total value of the goods came to be Rs. 14,26,064/-. However, when payment was sought for, the petitioner No. 1 only assured to make payment but did not make any payment. However, subsequently, a cheque dated 7.11.2013 for Rs. 2,00,000/- was issued which was encashed. Later on, some more cheques were issued by the petitioner No. 1, which, however, were not honoured on the ground that the cheques exceeded arrangement.
6. On receipt of the ejahar, a case was registered as Lakhisarai PS Case No 255/2016 under Section 406 IPC. It appears that, subsequently, the case was also registered under Section 420 IPC.
7. In the writ petition, categorical averments are made by the petitioners that the petitioners had business relationship with the respondent No. 6 from prior to 2010 and that over a long period of time there had been many transactions of purchase and sale in between the petitioners and the respondent No. 6 and payments were also made accordingly as would be demonstrated by the ledger account maintained.
8. The respondent No. 6 did not deny the long standing business relationship in its affidavit.
9. By drawing attention of the Court to section 181 of the Cr.P.C., 1973 Mr. Dubey submits the so called entrustment of the goods having taken place at the godown of the petitioners at Guwahati, part of cause of action had arisen within the jurisdiction of this Court and therefore, the plea taken that this Court does not have territorial jurisdiction is misconceived. In this connection, Mr. Dubey has placed reliance in the case of Navinchandra N. Majithia v. State of Maharashtra & ors., reported in (2000) 7 SCC 640. He submits that although the petitioners have made an alternative prayer, having regard to the allegations made in the ejahar, it is evident that the dispute between the purchaser and seller is an out and out a civil dispute and that the ejahar
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