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Try out our Premium Member services -- Free for one month.\n\nCalcutta High Court (Appellete Side)\nSri Uday Jayantilal Shah vs Evergreen Drums & Cans Pvt.Ltd on 14 July, 2022                          IN THE HIGH COURT AT CALCUTTA\n                          CRIMINAL APPELLATE JURISDICTION\n                                 APPELLATE SIDE\nPresent :\nThe Hon'ble JUSTICE BIVAS PATTANAYAK\n                          C.R.R. 307 of 2013\n                                 With\n      IA No. CRAN 1 of 2013(Old CRAN 2572 of 2013)\n                  Sri Uday Jayantilal Shah.\n                                  -Vs-\n               Evergreen Drums & Cans Pvt.Ltd.\n\n\nFor the Petitioner:              Mr. Pawan Kumar Gupta, Adv.\nFor the State :                  Mr. Anwar Hossain, Adv.\n                                 Ms. Sujata Das, Adv.\n\n\nHeard on:                        06.06.2022.\n\n\nJudgment on:                     14.07.2022\nBIVAS PATTANAYAK, J. : -\n1.The present revisional application has been filed by the petitioner-accused\n\nno.1 seeking order under Section 401/482 of the Code of Criminal Procedure\n\nfor quashing of a criminal proceeding in connection with Complaint Case No.\n\nC/96/2012 pending before Metropolitan Magistrate, 6 th Court, Calcutta, in\n\nrelation to offences under Sections 420/120B of the Indian Penal Code and all\n\nother orders connected thereto.\n\n\n2.The brief fact of the case is as follows:\n                                          2\n(i)     The opposite party-complainant is a private limited company\n\n        dealing    in   manufacture          of   drums,    barrels,   OTS   cans,   tin\n\n        containers, BOP tapes and PP caps.\n\n(ii)    The petitioner-accused no.1is an exclusive marketing agent for\n\n        procuring orders, ensuring payments and submitting Sales Tax\n\n        Form-H, in lieu of commission and for such service a written\n\n        contract dated 3rd March, 2005                   was entered between the\n\n        petitioner-accused no.1 and the opposite party-complainant.\n\n(iii)   In the month of April 2005, the petitioner-accused no.1 procured a\n\n        purchase order of OTS cans on behalf of M/s Maa Fruits India Pvt.\n\n        Ltd. which was accepted by the opposite party- complainant.\n\n(iv)    The petitioner-accused no.1 assured and represented that as the\n\n        OTS cans were meant for export the petitioner-accused no.1 will\n\n        supply all relevant documents including Form-H and shipping\n\n        documents.\n\n(v)     The accused no.2 and others executed a bond with the Central\n\n        Excise Department. The Assistant Commissioner of Central Excise\n\n        endorsed and accepted the bond and instructed the opposite party-\n\n        complainant to supply OTS cans.\n\n(vi)    On the strength of the bond and believing the representations\n\n        made by the petitioner-accused no.1 and other accused persons\n\n        and   on    good   faith   the        opposite     party-complainant   started\n\n        manufacturing OTS cans by procuring materials on payment of\n                                       3\n\n\n        Rs.6,73,558/- as Central Excise duties which was recoverable on\n\n        submission of shipping documents.\n\n(vii)   The materials were supplied to the accused persons. However the\n\n        accused persons failed and/or neglected to furnish Sales Tax\n\n        Form-H as well as shipping documents resulting in accrual of\n\n        liability   before   the   Sales   Tax   Authorities   to   the   tune   of\n\n        Rs.3,02,635/- and other allied loss to the complainant-company.\n\n(viii) On such allegations the opposite party-complainant submitted a\n\n        petition of complaint before the Additional Chief Metropolitan\n\n        Magistrate, Calcutta, registered as C/96/2012.\n\n(ix)    The learned Magistrate took cognizance of offence under Section\n\n        420/120B of the Indian Penal Code and the case was transferred\n\n        to Metropolitan Magistrate, 6th Court, Calcutta for enquiry and\n\n        disposal.\n\n(x)     On 07.03.2012 the complainant was examined under Section 200\n\n        of the Code of Criminal Procedure and thereafter the learned\n\n        Magistrate directed Officer-in-charge, Shyampukur Police station\n\n        to cause enquiry under Section 202 of the Code of Criminal\n\n        Procedure.\n\n(xi)    On 27.04.2012, Officer-in-Charge, Shyampukur Police Station\n\n        submitted report dated 25.04.2012 and upon consideration of\n\n        such enquiry report the learned Magistrate issued processes\n\n        against the petitioner-accused no.1 and others.\n                                         4\n3.Being aggrieved by and dissatisfied with the said order the petitioner has\n\nsought for quashing of the entire criminal proceedings.\n\n\n4.Mr.Pawan Kumar Gupta, learned advocate appearing on behalf of the\n\npetitioner submitted that the complaint filed by the opposite party-complainant\n\nprimarily do not disclose offences as alleged. Furthermore, the learned\n\nMagistrate without applying judicial mind to the purported report submitted\n\nby the Officer-in-Charge, Shyampukur Police Station, issued summons against\n\nthe accused(petitioner herein). The only allegation against the petitioner is that\n\nhe failed to submit Sales Tax Form-H due to which Sales Tax liabilities accrued\n\nresulting in loss to the opposite party-complainant, which can in no stretch of\n\nimagination constitute an offence of cheating and in support of his contention\n\nhe relied on the decision of the Hon'ble Apex Court passed in Anil Ritolla\n\nAlias A.K. Ritolia versus State of Bihar and Another, reported in (2007)\n\n10 SCC 110.He further, referring to an order passed by Hon'ble High Court, at\n\nBombay in Summary Suit 2065 of 2006 filed by the petitioner for his unpaid\n\nbills, submitted that the dispute is civil in nature and does not attract any\n\ncriminal liability. Moreover the contract between the opposite party no.2-\n\ncomplainant and the accused no.1 (petitioner herein) was entered in the year\n\n2005 but the complaint has been filed in the year 2012 after a long delay which\n\nraises a serious doubt in the veracity of the complainant's case. In the light of\n\nhis above submissions he prayed that the entire proceedings in connection\n\nwith complaint case no. C/96/2012 should be quashed in the interest of\n\njustice.\n                                        5\n5.In spite of service of notice none appeared on behalf of the opposite party-\n\ncomplainant.\n\n\n6.It is found from averments made in the complaint that the petitioner is a\n\nmarketing agent for procuring orders, ensuring payments and submission of\n\nstatutory Sales Tax Form-H. On 3rd March, 2005 a contract was entered into\n\nbetween opposite party-complainant and the petitioner-accused no.1 for\n\nproviding the said service. In the month of April 2005, the petitioner-accused\n\nno.1 procured a purchase order of OTS cans on behalf of M/s Maa Fruits India\n\nPvt. Ltd. which was accepted by the opposite party-complainant. On assurance\n\nof the petitioner-accused no.1 and others that the OTS cans were meant for\n\nexport hence the shipping documents as well as Sales Tax Form-H will be made\n\nover to the complainant-company, it started manufacturing the OTS cans on\n\nsuch representation by purchasing materials upon payment of Central Excise\n\nDuties to the tune of Rs.6,73,558/- which was recoverable on presentation of\n\nshipping documents. Although the goods were supplied to the accused\n\npersons, yet, in spite of repeated persuasions those documents were not made\n\nover to the complainant-company resulting in loss including Sales Tax liability\n\nto the tune of Rs. 3,02,635/-. On 18.04.2022 learned advocate appearing for\n\nthe petitioner undertook before this court to file documents relating to Sales\n\nTax Form-H, however during the course of hearing he did not to produce those\n\ndocuments. Upon filing of the complaint and after examination of the\n\ncomplainant under Section 200 of the Code of Criminal Procedure, the trial\n\ncourt ordered for enquiry under Section 202 of the Code of Criminal Procedure.\n                                         6\n\n\nThe Investigating Agency submitted enquiry report. The report (Annexure D)\n\nclearly indicates of a prima facie case for proceeding into the petition. On the\n\nbasis of the aforesaid report revealing prima facie case the learned Magistrate\n\nissued processes against the petitioner-accused no.1 and others. In exercising\n\nits power under the Code at the stage of issuing process the Learned\n\nMagistrate is neither to scrutinize the evidence nor to weigh the probability or\n\nimprobability with the purpose of proving the case but simply to find out\n\nwhether materials calls for proceeding with the petition of complaint or not.\n\nTherefore, the proceeding before the Magistrate does not call for interference.\n\n\n7.Learned advocate for the petitioner referring to an order passed by High\n\nCourt, at Bombay in Summary Suit no. 2065 of 2006 filed by the petitioner for\n\nhis unpaid bills, submitted that the dispute is civil in nature and does not\n\nattract any criminal liability. The aforesaid order dated 16 thApril 2007 at page\n\n39 (Annexure F) shows that a Summary Suit was instituted under order 37 of\n\nthe Code of Civil Procedure by the petitioner in respect of three bills raised by\n\nhim in relation to agreement dated 3rdMarch, 2005. Be that as it may, it\n\nappears from the said order that some part payments were also made by the\n\nopposite party-complainant. There cannot be any doubt or dispute that an\n\noffence of cheating or fraud can be committed even if the parties enter into a\n\ncommercial transaction. Several disputes of civil nature may also contain the\n\ningredients of criminal offences and if so, will have to be tried as criminal\n\noffences even if they also amount to civil disputes. The crux of the postulate is\n\nthe intention of the person who induces another by his representation and not\n                                           7\n\n\nthe nature of transaction which would become decisive in discerning whether\n\nthere was commission of offence or not. The complainant-company has stated\n\nthat believing on the representation of the petitioner-accused no.1 and others\n\nthat   they   would   furnish   the   requisite   documents   they   proceeded   to\n\nmanufacture the goods. The goods were supplied but requisite documents were\n\nnot furnished resulting in loss to the complainant-company and further in\n\nspite of persuasion those documents have not been handed over resulting in\n\nloss to the complainant-company. Such averments would primarily make out a\n\ncase for proceeding. The question whether the facts alleged would constitute\n\ninducement of the opposite party-complainant to enter into transaction with a\n\nview to deceive the complainant-company and cause unlawful loss are matters\n\nwhich needs to be considered and decided only on evidence. The issues raised\n\nin the present application squarely relate to question of fact which is to be\n\nassessed and decided in the trial.\n\n\n8. Further it has been strenuously argued on behalf of the petitioner that the\n\ncontract between the opposite party-complainant and the petitioner-accused\n\nno.1 was entered in the year 2005 and after a long lapse of period the\n\ncomplaint has been filed in the year 2012, raising a serious doubt in the\n\ngenuineness of the complainant's case. It is trite law that mere delay per se\n\nwould not make the complaint bad in law. The averments in the complaint\n\nreveal that there were repeated persuasions and demands made by the\n\ncomplainant-company before the accused persons to make good the wrongful\n\nloss. The statement of the complainant made during his examination under\n                                         8\nsection 200 of the Code of Criminal Procedure on 07.03.2012 shows that of late\n\nthe company namely M/s Maa Fruits India Pvt Ltd(Accused no.2),on whose\n\nbehalf the order was procured, has been wound up and a new company has\n\nbeen formed. Thus the offence appears to be continuous one. In the matters of\n\ncontinuing offence no duration of time can be fixed for filing complaint. In\n\ncases of pecuniary loss and causing wrongful loss, time of filing complaint\n\ncannot be considered on the touchstone of promptitude in filing complaint like\n\nin   other    cases   where   there   are   possibilities   of   exaggeration   and\n\nembellishments. The case of the complainant is based on documentary and\n\noral evidence pertaining to wrongful loss and there is hardly any scope for\n\nconcoction or introduction of coloured version. In such backdrop, I do not find\n\nany merit in the aforesaid contention raised by learned Advocate for the\n\npetitioner.\n\n\n9.As regards the decision of the Hon'ble Apex Court passed in Anil Ritolla\n\n(supra) relied on behalf of the petitioner it is found that excepting supply of\n\nForm "IX-C" of Bihar Sales Tax Rules other terms and conditions of the\n\ncontract were complied with, whereas in the case in hand there are allegations\n\nthat assurance were given by the petitioner-accused no.1 and others that as\n\nthe OTS cans were meant for export the shipping documents as well as Sales\n\nTax Form-H will be made over to the complainant-company and it started\n\nmanufacturing the OTS cans on such representation by purchasing materials\n\nupon payment of Central Excise Duties to the tune of Rs.6,73,558/- which was\n\nrecoverable on presentation of shipping documents. Although goods were\n                                             9\n\n\nsupplied yet those documents were never made over to the complainant-\n\ncompany resulting in loss. Thus the facts involved in the cited decision of the\n\nHon'ble Apex Court are distinguishable from the case in hand.\n\n10. The inherent powers under section 482 of the Code can be invoked and\n\nexercised only when the facts alleged in the complaint even if given face value\n\nand taken to be correct in their entirety, does not disclose an offence with\n\nwhich the accused is charged. In the present case in hand it is already found\n\nthat there are primary materials to proceed and as such invoking inherent\n\npower will lead to stifling of a legitimate litigation.\n\n11.In the light of above discussion this Court is of the view that the\n\nproceedings under challenge does not call for interference. Accordingly, the\n\npresent revisional application being CRR no. 307 of 2013 stands dismissed.\n\n12.It is however made clear that the observations made hereinabove shall not\n\nhave bearing on the rights and contentions of the parties before the trial court.\n\nAll the issues are kept open and the parties would be at liberty to assert those\n\nissues at the appropriate stage of trial.\n\n13.All connected applications, if any, stand disposed of.\n\n14.Interim orders, if any, stand vacated.\n\n15.Urgent Photostat Certified copy of this judgment, if applied for, be supplied\n\nto the parties expeditiously after complying with all necessary legal formalities.\n\n16.Let a copy of this order be sent to learned trial court for information.\n\n\n\n\n                                                          (Bivas Pattanayak, J.)