Allowed

Coolberg Beverages Pvt. Ltd. and 3 Ors. v. Shree Ram Enterprises and 4 Ors.

Gauhati HC8 Dec 2021Crl.Pet./404/2021

Case brief

AI extract

What is this about?

In a petition under Section 482 CrPC, the Gauhati High Court quashed criminal proceedings instituted against a beverage company and its officials for alleged cheating and criminal breach of trust. The court held that the dispute was purely civil in nature regarding business transactions and stock supply. The complaint failed to disclose dishonest intention at the time of the transaction, essential

What did the court decide?

The entire proceeding pertaining to CR Case No. 2113/2020 pending in the Court of learned JMFC, Kamrup (M), Guwahati, is quashed and set aside.

Coolberg Beverages Pvt. Ltd. and 3 Ors. Vs Shree Ram… — Cheating and Forgery | Gauhati HC (2021)

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GAHC010116422021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./404/2021

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COOLBERG BEVERAGES PVT. LTD AND 3 ORS 406, A-WING, UNIVERSAL BUSINESS PARK, OFF SAKI VIHAR ROAD,CHANDIVALI, MUMBAI, MAHARASTRA, PIN-400072, P.S. CHANDIVALI

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2: SRI PANKAJ ASWANI DIRECTOR OF COOLBERG BEVERAGES PVT. LTD. SON OF RADHAKRISHAN ASWANI PERMANENT RESIDENT OF 91/49 PATEL MARG MANSAROVER RAJASTHAN JAIPUR-302020.

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3: SRI SOMNATH SADHU REGIONAL SALES MANAGER OF COOLBERG BEVERAGES PVT. LTD. SON OF DIPAK SANDHU RESIDENT OF FLAT NO. 36 BLOCK-4 KANKURGACHI C.I.T. BUILDING KANKURGACHI KOLKATA WEST BENGAL-700054.

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4: SRI PANKAJ MALLICK

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AREA SALES MANAGER OF COOLBERG BEVERAGES PVT. LTD. SON OF SRI KRISHNA MALLICK

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R/O RAILWAY COLONY BAMUNIMAIDAN KAMRUP METRO PIN-781021 P.S. CHANDMARI ASSA

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VERSUS

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SHREE RAM ENTERPRISES AND 4 ORS C/O FLAT NO. 505, B-BLOCK, UTTARAYAN RESIDENCY, NARAKASUR KAHILIPARA, GUWAHATI-781019.

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2:SRI SANMOY GHOSH SON OF LATE SANJEEB GHOSH R/O H.NO. 31 UDAY PATH FATASHIL AMBARI P.S. FATASHIL AMBARI GUWAHATI-781025 KAMRUP (M) ASSAM 3:SMTI. POONAM JAIN W/O SRI RAJESH JAIN R/O FLAT NO. 505 B-BLOCK UTTARAYAN RESIDENCY NARAKASUR KAHILIPARA GUWAHATI-781019. 4:SMTI USHA DEVI PAREEK SON OF SRI PAWAN KR. PAREEK R/O 704 GOKUL HOMES BARASAPARA MAIN ROAD GUWAHATI-781018 KAMRUP (M) ASSAM 5:SRI ARVIND PAREEK SON OF SRI RANJEET PAREEK R/O H.NO. 31 UDAY NAGAR PATH FATASHIL AMBARI GUWAHATI-781025 KAMRUP (M) ASSA

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Advocate for the Petitioner : MR B KAUSHIK

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Advocate for the Respondent : MR. D KHAKHALARY

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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Date of hearing: 23.11.2021.

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Date of judgment: 08.12.2021.

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JUDGEMENT AND ORDER (ORAL)

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Heard Mr. B. Kaushik, learned counsel appearing for the petitioners as well as Mr. J. Sharma, learned counsel appearing for the respondents.

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By filing this petition under Section 482 of the CrPC, the petitioners are challenging the order dated 22.01.2021, passed by the learned Judicial Magistrate First Class No.5, Kamrup (M) at Guwahati, in C.R. Case No.2113^C /2020, whereby the learned Court has taken cognizance of the offence under Sections 406/420/34 of the IPC, against the petitioners and compelled their appearances by issuing process.

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The case of the respondents (complainants in C.R. Case No.2113^C /2020) is that they (complainant Nos.1 to 4) are businessmen and running their business in partnership under the name and style Shree Ram Enterprises (complainant No.5). The accused/petitioner No.1 Coolberg Beverages Pvt. Ltd. is a private limited company and the other accused (petitioner Nos. 2 to 5) are associated with various activities of the accused/petitioner No.1.

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The complainant No.5 was appointed as a super stockiest of accused No.1, for the entire North Eastern Region and the appointment letter was issued by e-mail dated 14.11.2019, containing certain terms and conditions therein, such as: (i) Materials will be delivered against advance payment only; (ii) complainant will be provided super stockiest margin @5% and transpiration will be fixed for all areas of North East after discussion. Distributor margin @10% and retail margin @25% on cost. The scheme is running 12+1 on

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primary basis. (iii) The company will provide sales support through experience sales personnel for secondary sales by multiple sales activities.

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It is stated that as per the agreed terms and conditions as well as on the advice of accused Nos.3 & 4, the complainants had lifted huge quantity of product of accused No.1, worth of Rs.29,15,013/- by making payment thereof, on three various dates i.e. on 28.11.2019, 07.12.2019 and 28.12.2019. The accused No.4 had initially brought some orders from the vendors of the North East and the complainants had supplied the goods by giving discounts upon the same, as per the policy of the company. Thereafter no order was placed by the accused No.4, being the Area Sales Manager of the company, to the complainants.

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Further it submits that since March, 2020, due to Covid-19 pandemic, lock down was declared in the country, the accused Nos.3 & 4 assured the complainants that as soon as the lockdown is lifted, new order would be placed to the complainants at the earliest. But though the lockdown was lifted and gradually the situation becomes normal, the accused had not given any new orders to the complainants. On communications from their side, the accused Nos.3 & 4 have intimated them that they are trying hard to collect orders and by 25^th June, 2020, they would be able to place handsome orders for the goods to the complainants and asked them not to worry for the same.

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But as no order was placed before the complainants, they tried to contact with the accused Nos.3 & 4 but they avoided the complainants. Later on upon inquiry, the complainants came to know that the products of the accused Company was supplied in the market through M/s. Maheswari Enterprises. After knowing the same, the complainants again contacted with the accused Nos.3 & 4, to know about the matter but they denied the appointment, of other stockiest in the region.

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On 29.06.2020, the complainants wrote a letter asking the accused No.1 company to reimburse the loss of Rs.26 lakhs suffered by them till date due to illegal and fraudulent action of the accused company. Moreover huge stocks of various products of the accused company are lying in the godown of the complainants, for which the complainants are paying rent regularly. Besides the above, the accused company has also not reimbursed the

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discounts, given by the complainants to the customers for purchase of goods upon the orders so brought by the accused No.4. As a result, the complainants suffered huge loss amounting to Rs.27,22,345/-, till 31.08.2020, which includes value of stock of goods, rent paid to the godown owners, discount allowed to the customers, salary of staff along with interest.

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On various occasions, the complainants demanded for reimbursement of the loss suffered by them but the accused persons neither responded to their demand for reimbursement nor make any payment. Under the circumstances, the complainants are of the believe that the accused with studied mind and criminal conspiracy, committed criminal breach of trust, induced the complainant for the purpose of cheating and then misappropriated the aforementioned huge amount of money, in the name of doing business with them.

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Accordingly the C.R. Case No.2113^C /2020 was registered and hearing the complainant No.1, for and on behalf of all the complainants under Section 200 CrPC, by the impugned the order dated 22.01.2021, the learned Magistrate took cognizance of the offence under Sections 406/420/34 of the IPC, against the accused and issued summons against them.

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Being aggrieved, the present petition is filed by the petitioners (accused in the C.R. Case No.2113^C /2020), contending inter alia that, as per the terms and conditions of the business deal with the respondents, they were engaged as one of the 800+ distributors in India for operating its business in Guwahati. As per the confirmed order of the respondents, the petitioners’ company supplied them the best quality stocks, in full, without any delay. But the terms of arrangement with the respondents was not on exclusive basis and they were never assured that they are the sole buyers of the product. Once the stocks are transferred to the buyer, the company is relieved from the ownership of the same. On various occasions, the petitioner company also appoints sales team at few places to support the buyers.

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It is the case of the petitioner company that the respondents purchased stocks/products directly from the petitioners company only on two occasions for an amount of Rs.11,60,135/- in total. Regarding purchase dated 07.12.2019, as mentioned in the complaint, the petitioner company states that those were not purchased directly for them but

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from some other source. The petitioner company states that, out of the total purchase of Rs.29,15,013/- as claimed by the complainants, the petitioner company supplied only 40% of the stock as per the order placed and remaining 60% of stocks were purchased from another reseller of the petitioner company.

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As per the petitioner company, the terms of sale and purchase, mentioned and documented with the respondents were:

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(i) Materials will be delivered on advanced payment only,

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(ii) As this is Non-Alcoholic Drink, require only FASSAI license to re-sale,

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(iii) The respondent will be provided super stockiest margin @5% and transportation will be fixed for all areas of North East after a discussion. Distributor Margin @10% and retail margin @25% on cost. Scheme is running 12+1 on primary basis (schemes change month wise),

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(iv) Stocks will be delivered on F.O.R. basis.

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(v) The company will provide sales support through experienced sales personnel for secondary sales by multiple sales activities.

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(vi) The company will inform schemes time to time if any, through mail.

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(vii) Any kind of expiry, breakage and leakage at the time of receiving stocks will be replaced 100%.

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(viii) All claims will be submitted to the company personnel within 30^th or 31^st of every month.

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Moreover, the petitioner company was not responsible to sell all/any stock belonging to the respondent enterprise. Rather, they have only assured for sell support with the help of experienced sales personnel but it does not means guarantee to sell cent percent stocks of the buyer. The petitioner company or its officials cannot be held responsible for the failure on the part of the respondents to sell their own stocks and loss suffered, if any in the business for their inability and lack of experience. Claiming of loss of Rs.26,000,00/- is totally absurd and do not have any factual, evidential or justifiable grounds for claiming such amounts. Such

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a claim has been made only to recover respondents own losses by way of pressure tactics. Further, it is stated the allegations in the complaint project a dispute between two business entity, business transaction and at best it disclose a civil dispute arising out of certain business transaction.

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It has been contended that the plain reading of the complaint does not constitute any offence for taking cognizance of offence under Section 406 or 420 IPC as there was no whisper in the complaint that there was dishonest or fraudulent intention on the part of the petitioners at the commencement of the business and that respondent was deceived by any false representation. Now, the challenge has been made against the order of taking cognizance contending that the learned trial court failed to take note of the allegations made in the complaint that the key ingredients of Section 406/420 IPC is not made out as there was no such dishonest or fraudulent intention on the part of the petitioner at the time of commencement of the business and there is no breach of trust on the part of petitioners during such business. Accordingly, it is prayed to quash and set aside the order of taking cognizance dated 22.01.2021.

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I have the heard the submission of the learned counsel for the petitioners and also the learned counsel for the respondent. The LCR pertaining to the case along with the statement is examined.

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Mr. B. Kaushik, learned counsel for petitioners drawing the attention of this Court towards the document that has been relied, it is contended that at the time when M/S. Shreeram Enterprise was appointed by Coolberg Beverages as Super Stockiest, there were certain conditions (vide Annexure-3) that materials will be delivered only against advance payment but in the complaint petition there is no allegation of violation of said condition and the complainant has suppressed the actual fact about the condition no.3 that the schemes changes month-wise and the stock will be delivered on FOR basis. There is no any allegation of violation of terms and conditions of the appointment.

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Further, it has been submitted that the complaint itself has been filed raising the grievances of financial loss stated to have incurred by them for no supply order before the

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complainant, the same cannot be termed as a cheating nor the business transaction between the parties cannot be termed as an entrustment within the purview of law. Referring to the content of the complaint, it has been urged before this Court that the complaint has been filed alleging that petitioners did not reimburse the loss stated to have incurred by them as they have to pay godown rent, value of stocks of goods, discount allowed to the customer part. According to the learned counsel for the petitioners, such course of business affair between the party can no way be termed either cheating or misappropriation.

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On the other hand, according to the learned counsel for the respondent/complainant Mr. J. Sarma that the entire conduct of the accused petitioners appointing complainant Company as Super Stockiest and thereafter not responding to the complaint without placing any new order to the complainant company, itself reveals that such appointment was obtained by way of inducement and there is a breach of entrustment on the part of the petitioners. Further, it contends that accused petitioners have deceived the complainant company by supplying the product to another company resulting financial loss to the complainant/respondent. Accordingly, it has been contended that the learned trial court has rightly taken cognizance of the offence and no interference is called for.

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In support of his argument, the learned counsel for the petitioners has relied the following decisions:

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2014 (1) GLT 887, Pran Jyoti Bhuyan –v- State of Assam and Anr.

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Case No. Crl.Pet. 558/2017, Pradip Rajkhowa and 2 Ors. –v- The State of Assam and Anr.

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Criminal Appeal No.932 of 2021 (arising out of SLP (Crl.) No.1190 of 2021), Randheer Singh –v- The State of U.P. & Ors. with Criminal Appeal No.933 of 2021 (arising out of SLP (Crl.) No.4237 of 2021).

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(2014) 13 SCC 553, Rashmi Jain –v- State of Uttar Pradesh and Another.

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In Pran Jyoti Bhuyan (supra), this court quashed the complaint filed under

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Section 420 IPC which was lodged by the complainant on the failure of borrower to repay the loan holding that only because borrower/accused did not pay the installment, it cannot be held that there was dishonest and fraudulent intention at the time of taking loan which is a sine qua non to attract the offence under Section 420 IPC.

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In another decision Pradip Rajkhowa (supra), this Court has quashed the proceeding under Section 406/420 IPC holding that when the allegations at their face value and its entirety do not prima facie constitute any offence, criminal proceeding is not maintainable.

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The Hon’ble Supreme Court in Randheer Singh (supra), has dealt elaborately with the provision of Section 420 and 406 IPC referring to catena of decisions while dealing with a matter of quashing proceeding under Section 420/467/468/471 IPC. It has endorsed the view taken in Inder Mohan Goswami –Vs- Uttaranchal; (2008) 1 SCC 259, that the Court must ensure that the criminal prosecution is not used as an instrumental harassment or for seeking private vendetta or with ulterior motive to pressurize the accused. There can be no doubt that jurisdiction under Section 482 CrPC should be used sparingly for the purpose of preventing abuse of process of any Court to secure ends of justice, whether a complaint discloses criminal offence or not, depends on the nature of allegations and whether essential ingredients of a criminal offence are present or not, has to be judged by the High Court. There can be no doubt that the complaint disclosing civil transaction may also have a criminal texture. The High Court has, however, to see the dispute of a civil nature has been given colour of criminal offence. In such a situation, High Court should not hesitate to quash the criminal proceeding, as held in Paramjit Batra –Vs- State of Uttarakhand; (2013) 11 SCC 673.

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The decision of Three-Judges’-Bench in Madhav Jiwaji Rao Scindia –VsSambhaji Rao Chandrojirao Angre; (1988) 1 SCC 692, has also been reiterated in Randheer Singh (supra). Principle laid down in Madhav J. Rao (supra) is quoted below:-

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“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the

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uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

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In Rashmi Jain (supra), the Hon’ble Supreme Court has quashed the criminal proceeding holding that the dispute is of purely civil in nature, and complaint is filed with malicious intent to convert a purely civil dispute into a criminal offence.

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On the other hand, the learned counsel for respondent, has cited the following decisions, contending that only because the matter has a civil profile, proceeding pertaining to criminal case cannot be quashed.

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(1999) 8 SCC 686, Trisuns Chemical Industry -v- Rajesh Agarwal and Others.

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(2001) 2 SCC 17, Lalmuni Devi (Smt) –v- State of Bihar and Others.

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(2002) 1 SCC 555, Kamaladevi Agarwal –v- State of W.B. and Others.

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In Trisuns Chemical Industry (supra), it is held that criminal prosecutions where cheating is alleged, cannot be thwarted because civil proceedings are also maintainable. Reference has also been made to the decision in Rajash Bajaj –v- NCT, 1999 (3) 3 SCC 259, wherein it has been held that “it may be that the facts narrated in the complaint would as well reveal a commercial transaction or money transaction but that is hardly a reason that the offence of cheating would elude from such a transaction. In fact, many cheating are committed in course of commercial and also monetary transaction.

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In Lalmuni Devi (supra), it has been held that it is true that if the complainant

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does not make out an offence, it can be quashed. However, it is also a settled law that facts may give a rise to a civil claim and also amount to an offence. Merely, because a civil case is maintainable does not mean that criminal complaint cannot be maintained, where it cannot be stated that complaint is a frivolous one.

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In Kamaladevi (supra), the Hon’ble Supreme Court held that while the trial court found that complainant has made out a prima facie case against the accused and the High Court is not justified in quashing the criminal proceeding merely on the ground that same document was under scrutiny in a civil proceeding initiated by same complainant.

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Let us now advert to the complaint petition. It reveals that the complainant was appointed as Super Stockiest under the accused/Company and it is stated that as per terms and conditions, the complainant has lifted huge quantity of stocks of products of the accused/Company, worth Rs. 29,15,013/-. The Company initially assured some orders from vendors of North-East, and the complainant supplied the goods by giving discount, but, thereafter, no such new order was placed by the Company, even after the lifting of lockdown, as a result of which, the complainant has to pay godown rent, along with salary to the staffs and discount to the customers, thereby incurred loss by the complainant till 31.08.2020, upto Rs. 27,22,345/-. It is alleged that the accused persons had not responded to their letter, claiming the reimbursement of the loss sustained by them.

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Further, it is stated that complainant came to know that the products of the company have now been supplied to one M/s Maheswari Enterprise. Under the circumstances, the complainant firmly believe that the accused persons with studied mind and conspiracy committed criminal breach of trust, induced the complainant for the purpose of cheating and misappropriated the aforesaid huge amount in the name of business and accused made false commitment of appointment of Super Stockiest for the entire North-East Region, for their products and dishonestly induced the complainant for purchase of huge stock by investing lakhs of rupees.

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From the averments in the complaint petition and the initial deposition of the complainant, it is undisputed that the complainant was appointed as Super Stockiest by the

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accused/Company and in view of the terms and conditions of appointment, it reveals that materials were supplied to the complainant as against the advance payment and the stocks will be delivered on F.O.R. basis. There is no whisper that such an appointment of the complainant as Super Stockiest was under inducement. The complaint petition is also totally silent that the respondent has dishonest or fraudulent intention at the time when the appointment was given. Subsequent inability of the Company to provide new supply order or to pay the amount as claimed by the Company towards reimbursement of maintenance of the stock, does not satisfy the ingredients of cheating, inasmuch, as dishonest intention at the time of initial transaction is lacking.

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So far as the offence of cheating is concerned, the same is defined in Section 415 IPC and the punishment is provided under Section 420 IPC. The cheating under Section 415 IPC is defined as follows:-

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“415-Cheating- Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived, to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything, which he would not do or omit, if he were not so deceived and which act or omission causes or likely to cause damage or harm to that person in body, mind, reputation or property is said ‘to cheat’.

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Explanation – A- Dishonest concealment of facts is a deception within the meaning of the Section.”

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From the language of the Section, it reveals that one of the essential ingredient of offence of cheating is deception, but in the present case, it is nowhere reflected that there was initial dishonest intention, while appointing the complainant as super-stockiest. All the communication and transaction was under the due course of business between the parties. The complainant himself has averred in the complaint petition that by not responding to his communication to reimburse his loss, he believes that the accused/Company has cheated him. None of the ingredients of cheating is made out to fasten the criminal liability upon the accused/Company (petitioner, herein) under Section 420 IPC.

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Similarly, the ingredients of offence of criminal breach of trust under Section 405 IPC; (1) there was an entrustment by one person to another person, of the property or with dominion over property; (2) such entrustment must be in trust; (3) there was a misappropriation on conversion to his own use by the person, who received the property in trust; and (4) such a conversion, or retention of the property was against or in violation of any direction of law prescribing the mode in which such trust is to be discharged for any legal contract made; is non est in the present case to attract the offence under Section 406 IPC.

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In the above referred decisions relied upon by both the parties, the proposition that has been laid that if the complaint does not make out an offence, it can be quashed. In the given set of facts and circumstances in the present case, may make out a civil wrong, but not a criminal offence. A dispute of civil nature has been given a colour of criminal offence, whereas no criminal offence has been made out from the complaint itself.

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In State of Haryana –Vs- Bhajan Lal; (1992) Suppl. (1) SCC 335, the Hon’ble Supreme Court has enumerated the categories of cases, wherein the High Court would be justified in exercising its inherent power under Section 482 CrPC, in order to prevent abuse of the process of Court and/or otherwise secure the ends of justice. In paragraph-102, categories of cases have been listed as under:-

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“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any

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offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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The present case squarely falls under the propositions of 1, 3 and 7 of Bhajan Lal (supra). Certain averments have been made in the complaint only to foist criminal liability upon the petitioner by converting a civil dispute into a criminal one. In the opinion of the Court, no useful purpose will be served by allowing the criminal proceeding to continue, where the chances of ultimate conviction are bleak.

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In view of above discussions and facts and circumstances of the case, this Court is of the view that cognizance taken is bad in law, as none of the offences, for which the

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petitioners are summoned, is made out from the complaint and materials on record, it will be nothing but the abuse of process of law in the event of further proceeding of the case.

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Resultantly, the entire proceeding pertaining to CR Case No. 2113^c /2020, pending in the Court of learned JMFC, Kamrup (M), Guwahati, is quashed and set aside.

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Accordingly, the Criminal Petition stands allowed.

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JUDGE

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Comparing Assistant

Coolberg Beverages Pvt. Ltd. and 3 Ors. v. Shree Ram Enterprises and 4 Ors.

Case brief

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Coolberg Beverages Pvt. Ltd. and 3 Ors. v. Shree Ram Enterprises and 4 Ors.

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