Dismissed

Deep Bhanushali v. State of Rajasthan

Rajasthan HC16 Oct 2023CRLMP/1781/2022

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a petition under Section 482 Cr.P.C. seeking quashment of an FIR for cheating and forgery. The Court held that cognizable offences were made out based on forged documents and lack of supply of goods post-contract renewal, rejecting the claim that it was a mere civil breach.

What did the court decide?

Impugned FIR registered at Police Station Udaimandir and proceedings pursuant thereto remained intact and were not quashed.

Deep Bhanushali Vs State of Rajasthan — Cheque Dishonour | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc (Pet.) No. 1781/2022

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Deep Bhanushali S/o Sh. Shambhulal, Aged About 33 Years, R/o Flat No. 601, Shubham Tower, Plot-77, Above Gagangiri Hospital, Sector 18, Kopar Khairane, Navi Mumbai, Thane, Maharashtra 400709.

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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Sanyam Jain S/o Rakesh Jain, Aged About 24 Years, B/c Jain, R/o Maa Ka Aashirwad Bhawan H.no. 18, Jain Colony, Bank Colony, Raika Bagh, Jodhpur, Rajasthan.

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----Respondents

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For Petitioner(s)	: Mr.Sanjay Bishnoi. Mr.Ram Prakash Dudi.
For Respondent(s)	: Mr.Shrawan Kumar, P.P. with Mr.Premdan, C.I. SHO PS Udaimandir, Jodhpur.
For Complainant	: Mr.KuldeepPurohit.

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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ORDER

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16/10/2023

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The instant criminal miscellaneous petition has been preferred by the petitioner under Section 482 Cr.P.C. for quashing the FIR No.437/2021 registered at Police Station Udaimandir, District Jodhpur City (East) for the offences under Sections 420, 406 and 120-B IPC.

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The contents of the FIR in brief are as follows; the complainant- respondent No.2 Sanyam Jain sent a complaint under Section 156(3) CrPC through post stating inter alia that the complainant is in the business of import-export and that he

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conducts his business across India and various countries such as Africa and Dubai, through his authorised representatives. The business transactions of the complainant’s business are made through the office adress mentioned in the complaint. Mukesh Jain, proprietor of SGM Steel, also known to the complainant, through Rakesh Goyal and Jagdish Palliwal, residing in Ghana (Africa), introduced the complainant to the petitioner, who is native of Mumbai, Maharashtra, conducting business of importing and selling black chickpeas.

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The complainant while starting the business of importing black chickpeas through the accused petitioner into India, on 05.10.2020, paid an advance to the tune of Rs.25,00,000/- in cash to the accused-petitioner. To confirm/prove the same, the complainant has attached soft copies of screenshots of Whatsapp chats between the complainant and the petitioner along with Form No.3. It was decided between the complainant and the accusedpetitioner that the petitioner would import good quality black chickpeas from Tanzania (East Africa) and supply the same in the warehouse at Mumbai. The complainant was assured by the petitioner that high quality black chickpeas would be imported in lieu of advance paid by the complainant. Acting upon the assurance given by the petitioner, the complainant during the period from 29.09.2020 to 26.12.2020, in the bank accounts disclosed by the petitioner, transferred advance amount to the tune of Rs.2,88,00,000/- for importing black chickpeas. The petitioner from time to time, on demands being raised by the complainant for the commodities/goods, raised bills accordingly and transmitted them to him electronically. As on 06.11.2020, as

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per the bills, commodities/goods to the tune of Rs.1,51,48,857/had been sent by the petitioner to the complainant, whereby he gained the trust of the complainant. The documents regarding above mentioned transactions are available with the complainant who has attached the same with the complainant along with Form No.3.

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After 06.11.2020, the petitioner did not send the commodities/goods as per the amount paid by the complainant, whereupon, the parties i.e. the complainant and the petitioner renegotiated the agreement, as per which, the complainant agreed to purchase the black chickpeas at a higher rate as decided by the accused-petitioner. The renegotiated sale purchase contract was received by the complainant on 11.12.2020, from the petitioner through Whatsapp, which has also been attached with the complaint, along with Form No.3.

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On 24.12.2020, the complainant was told by the accusedpetitioner that other than the initial advance of Rs.25,00,000/-, a total advance of Rs.1,16,51,143/- was left, for which commodities/goods worth Rs.1,36,51,143/-, would be sent by them by 28.12.2020. The accused-petitioner then asked the complainant to remit further advance amount to the tune of Rs.20,00,000/-, so that commodities/goods worth Rs.1,36,51,143 be sent to him. The complainant through the above mentioned office address, made online transfers of Rs.10,00,000 each on 25.12.2020 and 26.12.2020, in the bank accounts of the accusedpetitioner. After the online transfer of funds, the petitioner was told by the accused-petitioner that the commodities/goods are kept in M/s. Pearl Warehouse, Mumbai and the same will be

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transferred in the name of the firm as told by the complainant through Ware House Receipt. The accused-petitioner on 27.12.2020 allegedly sent forged Invoice (Bill No.2011) to the complainant. According to the Invoice, the complainant was given false information that commodities/goods worth Rs.98,90,000/through Ware House Receipt No.27783/22 (indicated in the Invoice), have been kept in M/s. Pearl Warehouse, Mumbai. On 28.12.2020, the petitioner told the complainant to pick up commodities/goods weighing 230 metric tonnes from the house and send advance amount in return of the commodities/goods so delivered.

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The complainant on inquiring, found out that the commodities/goods were never sent to Ms/ Pearl Warehouse, Mumbai and the Invoice (Bill No.2011) was a completely forged document. Through this modus operandi , the petitioner had cheated the complainant.

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Learned counsel for the petitioner submitted that the FIR lacks jurisdiction and the same has been got registered by the complainant through a wrong address so as to get the investigation done in the matter through his choice of police station i.e. Udaimandir, Jodhpur. To substantiate this contention, learned counsel submitted that in the complaint, the complainant has disclosed his address as House No.18, Jain Colony, Bank Colony, Raika Bagh, Jodhpur, Manager, M/s. Global Trade Link, 34, Mangal Bhawan, 2^nd Polo, Jodhpur. Learned counsel submitted that since the office of the M/s. Global Trade Link is situated at 34, Mangal Bhawan, 2^nd Polo, Jodhpur, the complainant- respondent No.2 ought not have given the address of House No.18, Jain

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Colony, Bank Colony, Raika Bagh, Jodhpur. Learned counsel further submitted that the complaint has not been filed by mentioning office address in a clandestine manner, only with a view to confer jurisdiction of learned ACJM-6, Jodhpur Metro, under which police station i.e. Udaimandir falls. Learned counsel also submitted that the complaint filed under Section 156 (3) CrPC before ACJM-6, Jodhpur Metro is an abuse of process of law and the order passed thereupon to the investigating agency to investigate the complaint is illegal being without jurisdiction. Consequently, the investigation being conducted in the matter by the police station Udaimandir also lacks jurisdiction and the same is illegal and nullity in the eyes of law.

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Learned counsel further submitted that a careful perusal of the FIR would reveal that no offence under Section 420 IPC is made out against the petitioner. It was argued that the complainant- respondent No.2 himself has admitted that commodities/goods worth Rs.1,51,48,857/- were sent to the complainant- respondent No.2 as per the contract between the parties upto 06.11.2020. Had the petitioner had any intention not to deliver the commodities/goods to the complainant- respondent No.2 and thereby dishonestly induce him to advance money upon the faith of such delivery then only, it could have been said that the petitioner by deceiving the complainant- respondent No.2, fraudulently and dishonestly induced him to remit advances. In other words, the argument of learned counsel for the petitioner is that since commodities/goods worth Rs.1,51,48,857 were delivered till 06.11.2020 to the complainant- respondent No.2, it

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could not be said that from the beginning, the petitioner had the intention to cheat the complainant- respondent No.2.

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As per learned counsel, it is purely a civil dispute between the parties and no criminal liability lies for the same. It was further contended that every breach of contract would not amount to cheating as there should be any intention of deception from the very beginning of the business. Learned counsel submitted that from the perusal of the facts of case, it is evident that the petitioner never had any intention to deceive the complainantrespondent No.2 and no criminal case is made out against the petitioner. Reliance was paced on the jugdment rendered by Hon’ble the Supreme Court in the case of Chandran Ratnaswami vs. KC Palaniswamy & Ors. (Civil Appeal No.4540 of 2013)

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Lastly, it was submitted that the petitioner had not dealt with the complainant- respondent No.2 directly in connection with above mentioned business transactions. Learned counsel submitted that entire business deal was made/ finalised through one Mukesh Jain, who represented himself as Director of M/s. Global Trade Link and with whom, no investigation has been made so far by the investigating agency. It was urged that the petitioner was dealing with Mukesh Jain only and in support of this contention, attention of the Court was drawn towards various chats between the petitioner and Mukesh Jain in connection with disputed business transactions.

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Learned counsel on these grounds, prayed that the criminal miscellaneous petition may be allowed by this Court and the

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impugned FIR and other proceedings initiated pursuant thereto, may be quashed and set aside.

¶49

Learned Public Prosecutor and learned counsel for the complainant- respondent No.2 have vehemently opposed the submissions advanced by learned counsel for the petitioner and submitted that in the present case, the offences under Sections 420, 406 and 120B IPC are made out as the petitioner had intention to cheat the complainant- respondent No.2 from the very beginning. To substantiate this contention, learned Public Prosecutor and learned counsel for the complainant- respondent No.2 submitted that true it is that upto 06.11.2020, commodities/ goods were supplies against the advances received by the petitioner, however, the sale purchase contract was renewed after 06.11.2020 and on the basis of the renewed contract, huge sum of advance amount i.e. about Rs.20 lakhs was obtained by the petitioner but the commodities/goods thereafter, were falsely informed to have been sent and forged Invoice (bearing No.2011) was generated. Learned counsel submitted that it is not a case where intention to cheat has developed later, but as a matter of fact, after renewal of sale purchase contract on new rates, not only commodities/goods have not been delivered but forged Invoice bearing No.2011 was sent to the complainant- respondent No.2 and the false information with regard to commodities/goods worth Rs.98,90,000 through Warehouse Receipt No.2773 having been kept at M/s. Pearl Warehouse, Mumbai was given.

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Learned counsel submitted that it is not a case of breach of contract only but as a matter of fact, intention to cheat is visible through various acts of the petitioner, details whereof have been

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given in the preceding paras immediately after renewal of sale purchase contract. Learned counsel submitted that offences under Section 420 IPC is made out against the petitioner. Learned Public Prosecutor also submitted that the argument with regard to investigating agency making no investigation qua the role of Mukesh Jain is concerned, the same has no force as the case file reveals that necessary questioning/investigation has been made from him and so far, no role of Mukesh Jain in commission of alleged offence has surfaced. He thus implored the Court to dismiss the miscellaneous petition.

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Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the complainant- respondent No.2. Perused the material available on record.

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This Court vide order dated 03.01.2023 and 14.09.2023 directed learned Public Prosecutor to call for the case diary and keep the Investigating Officer present before this Court.

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In compliance of the orders passed by this Court, case diary was produced for perusal of this Court by the Investigating Officer. From the perusal of factual report and case diary, this Court finds that the investigating agency has found the offences to be proved against the present petitioner and a cognizable offence has been found to be made out against the petitioner. The conclusion of the investigation conducted so far, by the investigating agency as per factual report reads as under:-

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“izdj.k esa vc rd ds vuqla/kku rFkk i=koyh ij miyC/k lk{;ksa ls ik;k x;k gS fd izkFkhZ eSllZ Xykscy VsªM fyad o vizkFkhZ QeZ M / s Phoenix Impex ds e/; lky 2020 ls O;kikfjd laca/k gSA izdj.k esa izkFkhZ QeZ eSllZ Xykscy VsªM fyad o vizkFkhZ QeZ M / s Phoenix Impex ds e/; fnukad 11-12-2020 dks DESI CHICK PEAS TANZANIA ds Ø; foØ; ds laca/k esa Sale- Purchase Contract fu’ikfnr gqvkA mDr bdjkjukek ds Øe esa izFke ykWV ds Ø; ds cnys izkFkhZ QeZ eSllZ

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Xykscy VsªM fyad }kjk vizkFkhZ QeZ M / s Phoenix Impex dks djhcu ,d djksM dk Hkqxrku fd;k x;k] ftl ij vizkFkhZ QeZ M / s Phoenix Impex }kjk fnukad 25-12-2020 jkf”k 98]91]855 : dk eky ugha Hkstdj QthZ buokbZl tkjh fd;k x;kA mDr buokbZl esa tks ykWV uacj vizkFkhZ QeZ M / s Phoenix Impex us vafdr fd;s gS rFkk ftl os;j gkml ls lacaf/kr gksuk crk;s gS] mDr os;j gkml ij vizkFkhZ QeZ M / s Phoenix Impex ij ykWV uacj vuqlkj eky Hkstuk ugha ik;k x;k gS rFkk mDr ykWV uacj vuqlkj izkFkhZ QeZ }kjk eky izkIr djuk ugha ik;k x;k gS vfirq vizkFkhZ QeZ M / s Phoenix Impex }kjk iwoZ esa tkjh QthZ buokbZl ds cnys fnukad 28-12-2020 dks 1]24]44]000 : dk MsfcV uksV tkjh fd;k gSA vr izdj.k esa vuqla/kku ls vkjksihx.k nhi”kEHkwyky Hkkuq”kkyh ,oa vfer xqIrk }kjk vkijkf/kd ‘kM;a= jpdj vekur esa [;kur ij /kks[kk/kMh djuk ik;k tkrk gSA tks vijk/k /kkjk 420] 406] 120ch Hkknala dh Js.kh esa vkrk gSaA izdj.k esa vuqla/kku tkjh gSA”

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Having considered facts and circumstances of the case and having perused the case diary, in the opinion of this Court, had it been a case of breach of contract only as claimed by the petitioner, the argument of the learned counsel for the petitioner that the complainant- respondent No.2 is making an effort to settle a civil dispute through the present criminal case could have been accepted but on a close scrutiny of the case file and report of investigating agency, this Court finds that after initial supply of commodities/goods by the petitioner as per the terms and conditions agreed by the parties, the terms of contract were renewed between the parties and thereupon, further advance was remitted by the complainant- respondent No.2, however, the petitioner did not supply the commodities/goods to the complainant- respondent No.2. It is also to be noticed that during investigation, it has been found that with a view to deceive the complainant- respondent No.2, forged Invoice bearing No.2011 has been generated and false information about commodities/goods being kept at M/s. Pearl Warehouse, Mumbai was also supplied by the petitioner. It is also to be noticed that

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during police investigation, a cognizable offence has been found to be proved against the petitioner.

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As far as argument with regard to jurisdiction of the complaint being filed by giving wrong address is concerned, suffice it to observe that the petitioner can always raise objections with regard to jurisdiction before the competent criminal court and the same cannot be made a ground for quashing the FIR at this stage, particularly when the offences have been found to be proved.

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In view of above discussion, this Court is not inclined to exercise its inherent powers under Section 482 Cr.P.C. to quash the impugned FIR.

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In the result, the instant criminal miscellaneous petition is dismissed.

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(KULDEEP MATHUR),J

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/tarun goyal/

Deep Bhanushali v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Deep Bhanushali v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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