All
Cargo Movers (I) Pvt. Ltd. & Ors Vs. Dhanesh Badarmal Jain & Anr [2007] Insc
1050 (12 October 2007)
S.B.
Sinha & Harjit Singh Bedi
(Arising
out of SLP (Crl.) No.1547 of 2007) S.B. Sinha, J.
1.
Leave granted.
2. 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 stating :
That
with utter disregard to the procedures and practice prevalent internationally,
and being fully conscious of the consequences of delivering the consignments
without production of the Bills of Lading, you M/s. Walford Meadows Ltd., as
agents of the Carrier at Mombassa Ltd. effected delivery of the consignments
covered under the aforesaid original bills of lading to the consignees, without
their producing the Bills of Lading. That my clients are shocked at your act of
negligence, which is contrary, violative and in breach of your duties under the
Contract and Law.
4.
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 breech of carriage and acted in violation of their
contract and obligation. A claim for a sum of US$ 84,353.31 was made. In the
said notice, it was stated :
That
you, M/s. Walford Meadows, sent a fax dated 19.9.1996 to M/s Universal
Apparels, copy of which was faxed to my clients by you M/s All Cargo Movers (India) Pvt. Ltd. By the said fax, you M/s
Walford Meadows Ltd. have clearly pointed out the procedures to be followed in
respect of Through Bills of Lading or House Bills of Lading and have admitted
that no cargo should be released to the importer without the presentation of
the original Bills of Lading. That you, M/s. Walford have gone one step further
and stated that you had delivered the consignments to Universal Apparels as a favour,
since Universal Apparels were your regular customers etc. etc. and lodged a
claim for the value of the said consignments being the amount they have been
debited with you, M/s. All Cargo.
5. On
or about 14.9.1996, Mahabir Apparels in a letter addressed to the petitioner
company, lodged a statement of claim stating :
PLEASE
TREAT THIS AS OUR FORMAL CLAIM FOR RS.27,87,795/- INVOLVED ON THIS CONSIGNMENT.
YOU ARE HEREBY ADVISED TO LOOK INTO THE MATTER AND GIVE US THE EXACT STATUS OF
THE ABOVE CARGOES IMMEDIATELY.
6. Yet
again by a fax message dated 19.9.1996 sent by Darius Macharo to the Universal
Apparels, it was stated :
The
above shipments were realeased and delivered to you without your showing to us
the original Bills of Lading.
The
procedure of the through bills of lading or house bills of lading (illegible)
should be released to the importer without presentation of the original bill of
lading. However, this favour was extended to you because 1. You are our regular
customer.
2. To
save you for heavy post storage charges which you would ((illegible) you were
to wait until you got the original bill from your supplier.
3. You
needed the material very urgently as you were out of stock.
We
have now been advised by our Principals, All Cargo that your supplier Mahavir
Apparels is demanding US Dollar 84,353.31 from us as we released the goods in
absence of the original B/L.
(illegible)
Please revert now as we have to advise our Principal in India before close of business today.
In the
meantime we are holding all your shipments until this matter is resolved.
7. A
copy of the said fax message was sent to the appellant herein stating:
CC
: All Cargo India, Mumbai.
Attn :
Vevek Kele We shall come back to you with full details upon receiving reply
from Universal Apparels. Cargo was released without Bank Guarantee.
8. 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.
9. 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.
10. In
the said suit, the following have been arrayed as defendants :
1.
ACE Lines Ltd. a company Incorporated under Foreign Laws, Having its office at 29 Bis Mere Bathelemy Street, Port Louis, Mauritius.
2. All
Cargo Container Lines Ltd.
A
company incorporated under Foreign laws having its office at 29, Bis Mere, Bathelemy Street, Port Louis Mauritius.
3. All
Cargo Movers (India) Pvt. Ltd.
A
company incorporated in India Under the Companies Act, 1956 And having its
office at 204, National Insurance Building, Dr. D.N. Road, Bombay 400001.
4. M/s
Walford Meadows Limited, A company incorporated under Foreign Laws having its
office at 1st American Bank Building, 2nd Floor, No.1 Avenue, Mombassa.
11.
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 case made out in
the plaint by the first respondents is as under :
The
respective ships carrying the said six consignments sailed from the Port of Bombay on
different dates and arrived at Mombassa. The 3rd Defendants addressed 2 fax
messages dated 30.8.1996 and 2.9.1996 to the 4th Defendant specifically
instructing them to deliver the said six consignments only against presentation
of original Bills of Lading. The Plaintiff is crave leave to refer to and rely
upon the aforesaid correspondence.
XXX XXX
XXX The plaintiff immediately addressed a fax dated 11.9.1996 to the 3rd
Defendant (with a copy to M/s. Harilal Bhawanji) questioning the legality,
propriety in giving delivery of the cargo without production of the Bills of
Lading. The plaintiff also pointed out that they had not given any written
permission to give delivery of the cargo without production of the Bills of
Lading. The Plaintiff whilst emphasizing that the matter was very serious
informed the 3rd Defendant to inform their Mombassa Agents not to release the
goods without production of the original Bills of Lading in respect of their
consignments. The plaintiff craves leave to refer to and rely upon the said
correspondence when produced.
12.
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 wherein, inter
aila, it was alleged :
Thereafter
in and subsequent to September, 1996, the complainant was shocked to learn that
the accused have delivered away the goods materials of the complainants
above described 6 consignments without presentation of and securing the
original 6 Bills of Lading, which were till with the complainant and not
negotiated i.e. paid off by the purchasing party and thus the accused in
abetment of each other and acting in common concern have committed criminal
breach of Trust by causing criminal misappropriation of the valuable property
of the complainant and have committed offences punishable u/s.407, 34 and 114
of I.P. Code.
By
issuing their said Bills of Lading in acceptance and compliance of the
complainants invoices, the accused represented, assured and induced the
complainant to believe that the complainants goods material delivered to
the accused by the complainant would be delivered by the accused to the
receiving party only TO ORDER i.e. only on the presentation of
original bills of Lading to the party receiving the delivery of the goods
material.
If the
accused had not to represented assured and induced the complainant, he would
not have risked his gods material of the value of US$ 98,715.29 (i.e. Rs.38,49,896.31
at dollar rate about Rs.39/-) to be delivered to the accused. Thus, the accused
have in abetment and concert of each other, cheated the complainant and
committed offences u/s 420, 34 and 114 of I.P. Code.
13.
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.
14. 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.
15. 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 holding :
Perusing
the complaint in light of the above arguments and legal propositions, it was
clear that the allegations made therein, prima facie, disclosed the offence of
breach of trust and the important averments were substantiated by the statement
on oath of the complainant. There is no reason to examine the documents and defences
of the petitioner at this stage to find out whether the complainant was likely
to result in conviction. It is not established though alleged, either that the
complainant did not disclose any offence or that the criminal proceedings were
a gross abuse of the process of law, instead, it appears from the record that
hearing of the present petition is unduly delayed after grant of ex-parte
interim relief on 1.9.1998. Therefore, petition is dismissed, Rule is
discharged and interim relief is vacated with no order as to costs.
16.
Mr. P.H. Parekh, learned counsel appearing on behalf of the respondents, has
drawn our attention to several documents to show that it had all along been
contended by the first respondent that the appellant was also guilty of
violating the terms of the Bill of Lading.
17. We
are of the opinion that the allegations made in the complaint petition, even if
given face value and taken to be correct in its entirety, do not disclose an
offence. For the said purpose, This Court may not only take into consideration
the admitted facts but it is also permissible to look into the pleadings of the
plaintiff-respondent No.1 in the suit. No allegation whatsoever was made
against the appellants herein in the notice. What was contended was negligence
and/or breach of contract on the part of the carriers and their agent. Breach
of contract simplicitor does not constitute an offence. For the said purpose,
allegations in the complaint petition must disclose the necessary ingredients therefor.
Where a civil suit is pending and the complaint petition has been filed one
year after filing of the civil suit, we may for the purpose of finding out as
to whether the said allegations are prima facie cannot notice the
correspondences exchanged by the parties and other admitted documents. It is
one thing to say that the Court at this juncture would not consider the defence
of the accused but it is another thing to say that for exercising the inherent
jurisdiction of this Court, it is impermissible also to look to the admitted
documents. 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 this power should also strive to serve the ends of justice.
18. In
G. Sagar Suri & Anr. v. State of U.P.
& Ors. [(2000) 2 SCC 636, this Court opined :
8.
Jurisdiction under Section 482 of the Code has to be exercised with great care.
In exercise of its jurisdiction the High Court is not to examine the matter
superficially. It is to be seen if a matter, which is essentially of a civil
nature, has been given a cloak of criminal offence. Criminal proceedings are
not a short cut of other remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For the accused it is a
serious matter. This Court has laid certain principles on the basis of which
the High Court is to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent abuse of the
process of any court or otherwise to secure the ends of justice.
19.
Therein also, having regard to the fact that a criminal complaint under Section
138 of the Negotiable Instruments Act had already been pending, a criminal
complaint under Section 406/420 was initiated which was found to be an abuse of
the due process of law.
20. In
Anil Mahajan v. Bhor Industries Ltd. & Anr. [(2005) 10 SCC 228], this Court
held :
8.
The substance of the complaint is to be seen.
Mere
use of the expression cheating in the complaint is of no consequence.
Except mention of the words deceive and cheat in the
complaint filed before the Magistrate and cheating in the complaint
filed before the police, there is no averment about the deceit, cheating or
fraudulent intention of the accused at the time of entering into MOU wherefrom
it can be inferred that the accused had the intention to deceive the
complainant to pay. According to the complainant, a sum of Rs.3,05,39,086 out
of the total amount of Rs.3,38,62,860 was paid leaving balance of Rs.33,23,774.
We need not go into the question of the difference of the amounts mentioned in
the complaint which is much more than what is mentioned in the notice and also
the defence of the accused and the stand taken in reply to notice because the
complainants own case is that over rupees three crores was paid and for
balance, the accused was giving reasons as above-noticed. The additional reason
for not going into these aspects is that a civil suit is pending inter se the
parties for the amounts in question.
21. In
Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257}, this Court opined :
It
is settled law, by a catena of decisions, that for establishing the offence of
cheating, the complainant is required to show that the accused had fraudulent
or dishonest intention at the time of making promise or representation. From
his making failure to keep promise subsequently, such a culpable intention
right at the beginning that is at the time when the promise was made cannot be
presumed. It is seen from the records that the exemption certificate contained
necessary conditions which were required to be complied with after importation
of the machine. Since the GCS could not comply with it, therefore, it rightly
paid the necessary duties without taking advantage of the exemption
certificate. The conduct of the GCS clearly indicates that there was no
fraudulent or dishonest intention of either the GCS or the appellants in their
capacities as office-bearers right at the time of making application for exemption
.
As
there was absence of dishonest and fraudulent intention, the question of
committing offence under Section 420 of the Indian Penal Code does not
arise. {See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005) 3 SCC 670] and Indian Oil
Corporation v. NEPC India Ltd. & Ors. [(2006) 6 SCC 736]}.
22.
For the reasons aforementioned, the impugned judgment cannot be sustained. It
is set aside accordingly. Appeal is allowed and the order taking cognizance
against the appellant is set aside.
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