2007 Supreme(SC) 1373

2007(7) Supreme 334
Supreme Court of india
(From Gujarat High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
All Cargo Movers (I) Pvt. Ltd. & Ors. — Petitioners
versus
Dhanesh Badarmal Jain & Anr. — Respondents
Appeal (crl.) 1443 of 2007
(Arising out of SLP (Crl.) No. 1547 of 2007)
Decided on : 12-10-2007

important points
Breach of contract simplicitor does not constitute an offence.
Complaint must disclose an offence for taking cognizance of the same.

Headnote:(a)Indian Penal Code, 1860 – Sections 406 and 420 – Consignment sent by appellant delivered by his agent without bills of lading – No allegation of appellant to have caused delivery of the goods – Complainant-respondent making a claim of US$ 84,353.31 – Agent of the Kenyan counterpart of the petitioner, against whom allegations have been made not made an accused – Complaint not containing any averment making out ingredients of sections 406 and 420 – Criminal proceeding not sustainable. (Paras 13 and 16)

       (b)Administration of Justice – It is permissible for the courts to look into pleadings in addition to admitted facts to determine whether the allegations made in the complaint disclose an offence. (Para 16)

       (c)Indian Penal Code, 1860 – Section 40 – Breach of contract simplicitor does not constitute an offence. (Para 16)

       (d)Judicial Review – Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, Court may notice the correspondences exchanged by the parties and other admitted documents. (Para 16)

       (e)Code of Criminal Procedure, 1973 – Section 482 – Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court – Superior Courts, while exercising inherent power should also strive to serve the ends of justice – For want of complaint satisfying ingredients of sections 406 and 420, the order taking cognizance against the appellant cannot be sustained. (Para 16)

       (2000) 2 SCC 636; (2005) 10 SCC 228; (2003) 5 SCC 257; (2005) 3 SCC 670; (2006) 6 SCC 736 – Relied upon.

       Facts of the case:

       The parties hereto entered into a contract of carriage. First Respondent approached the appellants which are companies registered and incorporated under the Indian Companies Act for delivery of six consignments valued at US $ 98,715.29 to the original consignee, M/s. Universal Apparels (EPZ), Mombassa, Kenya. By reason of a fax message, Appellants asked their counterparts in Mombassa, Kenya (Walford Meadows) to confirm delivery of consignment asking it to see that the cargo is delivered only against presentation of original Bills of Lading. The goods in question were said to have been delivered by the agent of the petitioner to the original consignee but the same allegedly was rejected on the ground of being inferior in quality. Goods are said to have been delivered to M/s. Fashionette Industries Ltd. Complainant-Respondent issued a notice to the accused persons as also the aforementioned Walford Meadows and M/s. Universal Apparels.

       Negligence was, thus, attributed to the agencies in delivering the cargo without the original Bill of Lading. It was also alleged that the carriers and their agent have committed a breach of carriage and acted in violation of their contract and obligation. A claim for a sum of US$ 84,353.31 was made.

       On or about 14.9.1996, Mahabir Apparels in a letter addressed to the petitioner company, lodged a statement of claim.

       A bare perusal of the aforementioned letters/notices would clearly indicate that no allegation had been made at the material time that it was the appellant who had caused delivery of the goods.

       It is furthermore not in dispute that a suit has been filed by the respondent herein in the Original Side of the Bombay high Court which has been marked as suit No.1861 of 1997.

       Whereas defendant Nos.1 to 3 are alleged to be inter-related/sister companies, the fourth defendant is said to be their agent. In the said suit, neither the aforementioned M/s. Walford Meadows Ltd. nor M/s. Universal Apparels have been implicated as parties. Plaintiff in the said suit averred that entrustment of the six consignments have been made to Mahabir Apparels.

       The said suit is still pending. More than one year after filing of the said suit, i.e., on or about 6.5.1998, a complaint petition was filed.

       Agent of the Kenyan counterpart of the petitioner, namely M/s. Walford Meadows Ltd. against whom allegations have been made that it had delivered the consignments to the assignee without original bills of lading had not been made an accused.

       A bare perusal of the complaint petition would show that it did not contain any averment in regard to the ingredients of the offence under Sections 406 and 420 of the Indian Penal Code. There is no allegation that it was the petitioner who had delivered the goods.

       An application for quashing of the order issuing summons to the appellant by the learned Metropolitan Magistrate has been dismissed by the High Court of Gujarat by reason of the impugned judgment dated 19.1.2007.

       Findings of the Court:

       Complaint does not disclose an offence, order taking cognizance not sustainable.

       Result : Appeal allowed.