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IN THE HIGH COURT OF MADHYA PRADESH
J. P. Gupta, J.
Nike India Private Limited & Others
v. My Store Private Limited
Miscellaneous Criminal Case No. 21862 of 2017 (Jabalpur); Decided on 8.8.2019
(1) Criminal P. C., 1973 -- S. 482 -- scope -- documents filed by accused/petitioners, if they are unimpeachable, can be considered to arrive at judicial conclusion as to whether continuity of proceeding in trial Court would be meaningful or mere wastage of time etc. -- or whether proceeding has been launched to take vengeance or due to malice. (2008)13 SCC 678 and (2013)3 SCC 330 followed. (2005)1 SCC 568 referred to. [Paras 8 & 9]
(2) Penal Code, 1860 -- Ss. 403, 405 and 406 -- no specific averments in complaint that there was any direction to petitioners that if amount is paid through RTGS, cheques should be returned unpaid -- not returning cheques and presenting them for encashment -- cannot be said to be an act of criminal breach of trust -- cheques dishonored and petitioners did not receive any amount -- it cannot be said that petitioners dishonestly misappropriated property -- dispute is purely of civil nature. 1968 Mh. LR 113 relied on. [Paras 11 & 12]
(3) Penal Code, 1860 -- S. 409 r/w S. 120B -- complaint does not disclose necessary ingredients of offence u/s. 409/120B -- matter purely civil in nature -- already adjudicated by Arbitration Tribunal -- complaint has been filed maliciously, giving it colour of criminal offence. (2006)6 SCC 736 followed. (1999)8 SCC 686 and (1999)3 SCC 259 disinguished. [Paras 15]
(4) Practice (Criminal) -- territorial jurisdiction -- cognizance -- order of cognizance by Magistrate cannot be quashed by High Court on ground that Magistrate did not have territorial jurisdiction to try case -- power to take cognizance is different from power to try case. (1999)8 SCC 686 followed. [Para 16]
(5) Criminal P. C., 1973 -- S. 482 -- Penal Code, 1860 -- S. 406 -- scope of power u/s. 482, CrPC -- power to quash proceedings is generally exercised when there is no material against applicants even if allegation is accepted as true -- allegation or material on record do not make out offence of criminal breach of trust -- complaint filed as counterblast to filing of complaint u/s. 138 of Negotiable Instruments Act -- filed maliciously to wreak vengeance. Cr. A. No.1082 of 2019 decided on 31.7.2019 (SC) distinguished. [Para 20]
¼1½ naM çfØ;k lafgrk] 1973 & èkkjk 482 & O;kfIr & vfHk;qDr@;kph }kjk çLrqr fd, x, nLrkostksa ij] ;fn og vufèk{ksi.kh; gksa] bl ckjs esa U;kf;d fu"d"kZ ij igaqpus ds fy, fopkj fd;k tk ldrk gS fd fopkj.k U;k;ky; esa dk;Zokgh tkjh j[kuk lkFkZd gksxk ;k le; dh cckZnh ek= vkfn gksxk & vFkok D;k dk;Zokgh çfr'kksèk ds fy, ;k fo}s"k ds dkj.k lafLFkr dh xà gSA ¼2008½ 13 ,l lh lh 678 rFkk ¼2013½ 3 ,l lh lh 330 vuqlfjrA ¼2005½ 1 ,l lh lh 568 fuÆn"VA ¼iSjk 8 ,oa 9½
¼2½ naM lafgrk] 1860 & èkkjk 403] 405 rFkk 406 & ifjokn esa fofuÆn"V çdFku ugha fd ;kphx.k dks dksà funs'k fn;k x;k Fkk fd ;fn jde vkj Vh th ,l ds ekè;e ls lanRr dh tkrh gS rks pSd vlanRr ykSVk, tk,a & pSd ugha ykSVkuk vkSj mUgsa Hkqukus ds fy, çLrqr djuk -- vkijkfèkd U;kl Hkax dk ÑR; ugha dgk tk ldrk & pSd vukn`r rFkk ;kphx.k us dksà jde çkIr ugha dh & ;g ugha dgk tk ldrk fd ;kphx.k us csÃekuhiwoZd laifÙk dk nqÆofu;ksx fd;k & fookn fo'kq)r% flfoy çÑfr dk gSA 1968 ,e ,p ,y vkj 113 voyafcrA ¼iSjk 11 ,oa 12½
¼3½ naM lafgrk] 1860 & èkkjk 409 lgifBr èkkjk 120[k & ifjokn ls èkkjk 409@120[k ds vèkhu vijkèk ds vko';d la?kVd çdV ugha & ekeyk fo'kq)r% flfoy çÑfr dk & ekè;LFke~ vfèkdj.k }kjk igys gh U;k;fu.kÊr & nkafMd vijkèk dk uke nsrs gq, ifjokn fo}s"kiwoZd çLrqr fd;k x;k gSA ¼2006½ 6 ,l lh lh 736 vuqlfjrA ¼1999½ 8 ,l lh lh 686 rFkk ¼1999½ 3 ,l lh lh 259 çHksfnrA ¼iSjk 15½
¼4½ çFkk ¼nkafMd½ & {ks=h; vfèkdkfjrk & laKku & eftLVªsV }kjk laKku dk vkns'k mPp U;k;ky; }kjk bl vkèkkj ij vfHk[kafMr ugha fd;k tk ldrk fd eftLVªsV dks ekeys dk fopkj.k djus dh {ks=h; vfèkdkfjrk ugha gS & laKku dh 'kfDr ekeys ds fopkj.k dh 'kfDr ls fHkUu gSA ¼1999½ 8 ,l lh lh 686 vuqlfjrA ¼iSjk 16½
¼5½ naM çfØ;k lafgrk] 1973 & èkkjk 482 & naM lafgrk] 1860 & èkkjk 406 & naM çfØ;k lafgrk dh èkkjk 482 ds vèkhu 'kfDr dh O;kfIr & dk;Zokgh vfHk[kafMr djus dh 'kfDr lkèkkj.kr% rc ç;qDr dh tkrh gS tc vfHkdFku dks lR; eku ysus ij Hkh vkosndx.k ds fo:) dksà lkexzh ugha gks & vfHkdFku ;k vfHkys[kxr lkexzh ls vkijkfèkd U;kl Hkax dk vijkèk fl) ugha & ijØkE; fy[kr vfèkfu;e dh èkkjk 138 ds vèkhu ifjokn çLrqr fd, tkus ds çfrdkjLo:i ifjokn çLrqr fd;k x;k & çfr'kksèk ds fy, fo)s"kiwoZd Qkby fd;k x;k] nkafMd vihy Øekad 1082 lu~ 2019 fu.kÊr fnukad 31-7-2019 ¼mPpre U;k;ky;½ çHksfnrA ¼iSjk 20½
ORDER
1. This petition under section 482 of the CrPC has been filed by the petitioners seeking quashment of the order dated 3.6.2017 passed by learned JMFC, Bhopal whereby cognizance for an offence punishable under sections 409 read with section 120B of the IPC has been taken against the petitioners.
2. In this case it is not disputed that the respondent / complainant company has got franchise from petitioner No. 1 Company with regard to business of shoes and garments and the complainant company is operating its business at 21 places in India. Between petitioner No. 1 and the complainant company there was a dispute with regard to account of transactions which was settled amicably on 7.12.2015 and according to settlement in first step Rs. 2,97,00,000/- was to be paid by the respondent / company to petitioner No. 1 company and for the payment of the aforesaid amount, 22 post-dated cheques were given and the some disputes remained pending.
3. On behalf of the complainant / respondent a complaint has been filed before the JMFC, Bhopal on 22.11.2016 stating that out of the aforesaid 22 cheques, the amount of 10 cheques was paid to petitioner No. 1 Company through RTGS. There were changes in the Rules and Regulations with regard to encashment of the cheques by the bank, therefore, 5 more cheques were given to petitioner No. 1 Company. The amount of 10 cheques were paid through RTGS and 5 cheques given later-on in place of remaining cheques were not encashable and no criminal proceeding with regard to dishonor of the aforesaid cheques can be taken against the complainant company and the cheques were returnable but the same were not returned despite of the demand and were presented before the bank for encashment and on dishonor of the cheques a criminal proceeding has been started against the complainant company with ulterior motive by the petitioner No. 1 Company which is operated by petitioners No. 6 to 8 and other petitioners have knowledge and connivance in the aforesaid act, therefore, the petitioners are liable to be punished. Learned JMFC took cognizance of the offence under section 409 read with section 120-B of the IPC against the petitioners. Hence, this petition.
4. This petition has been preferred on the ground that the order of learned JMFC is illegal and contrary to law. Prima-facie no offence under section 409 r/w. section 120B of the IPC is made out. The alleged act is purely a civil nature dispute and criminal colour has been given on account of the proceeding started by the petitioners company to recover the amount by filing the complaint under section 138 of the Negotiable Instruments Act and also started proceedings before the Arbitration Tribunal. In respect of this commercial dispute, the Arbitration Tribunal headed by Former Chief Justice of Karnataka has also passed the award in favour of the petitioners company, in which, the aforesaid cheques were also disputed and these facts are not disclosed deliberately by the complainant. Further contended that there is a presumption with regard to the cheques that those have been given for due con-sideration and there was no relationship of the trust between the petitioners and respondent complainant and therefore, no criminal breach of trust is made out and petitioners No. 2 to 8 have been made accused without any necessary averment in the complaint. They are not vicariously liable for the action of petitioner No. 1 Company as there is no specific allegation as to how and what manner they played any role in the alleged commission of the crime. Apart from it, the cheques were presented for encashment in the Bangalore; the Court situated in Bhopal had no jurisdiction to take any cognizance with regard to alleged offence. Accordingly, the proceeding of the aforesaid criminal case deserves to be set-aside.
5. Learned counsel appearing on behalf of the respondent / Complainant Company has contended that the averments in the complaint and the evidence produced before learned
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