Full Judgment Text
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CASE NO.:
Appeal (crl.) 1443 of 2007
PETITIONER:
All Cargo Movers (I) Pvt. Ltd. & Ors
RESPONDENT:
Dhanesh Badarmal Jain & Anr
DATE OF JUDGMENT: 12/10/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
(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 :
\023That 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.\024
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 :
\023That 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
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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.\024
5. On or about 14.9.1996, Mahabir Apparels in a letter addressed to the
petitioner company, lodged a statement of claim stating :
\023PLEASE 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.\024
6. Yet again by a fax message dated 19.9.1996 sent by Darius Macharo
to the Universal Apparels, it was stated :
\023The 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.\024
7. A copy of the said fax message was sent to the appellant herein
stating:
\023CC : 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.\024
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 :
\0231. ACE Lines Ltd. a company
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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 \026 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.\024
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 :
\023The 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 :
\023Thereafter in and subsequent to September, 1996,
the complainant was shocked to learn that the
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accused have delivered away the goods materials
of the complainant\022s above described 6
consignments without \026 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 complainant\022s
goods \026 material delivered to the accused by the
complainant would be delivered by the accused to
the receiving party only \023TO ORDER\024 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.\024
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 :
\023Perusing 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.
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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 :
\0238. 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 :
\0238. The substance of the complaint is to be seen.
Mere use of the expression \023cheating\024 in the
complaint is of no consequence. Except mention of
the words \023deceive\024 and \023cheat\024 in the complaint
filed before the Magistrate and \023cheating\024 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 complainant\022s own case is that over
rupees three crores was paid and for balance, the
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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.\024
21. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC
257}, this Court opined :
\023It 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.\024
{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.