TaxTMI 
TaxTMI 
2023 (1) TMI 1354
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....s of statement of Complainant, the charge is appearing prima facie regarding showing forged demand of Rs. 6,37,252.16 against the Complainant by the Opponents Manager Jotun India Pvt. Ltd. Delhi, Chief Manager Jotun India Pvt. Ltd. Andheri East, Mumbai. Hence, the Opponents Manager Jotun India Pvt. Ltd. through Chief Manager Jotun India Pvt. ltd. Andheri East, Mumbai is liable to (be) summoned for trial in Section 406 Indian Penal Code for trial prima facie. (emphasis supplied) 2. Interestingly, in the cause title of the private complaint filed by Shubhankar P. Tomar, the proprietor of Adhunik Colour Solutions, Respondent No. 2 - complainant, states that the complaint was directed against: (a) Manager, JIPL, having its office at Saket District Centre, New Delhi; (b) Chief Manager, JIPL, having its office at Andheri East, Mumbai; (c) Jotun S/S Hystadveien, Sanddefjord, Norway For short, 'Jotun S/S'.; and (d) Orkala ASA Nedre Skoyen vei, Oslo, Norway For short, 'Orkala ASA'.. 3. The Manager and the Chief Manager, JIPL have not been named and identified in the complaint. Neither does the summoning order name the Man....
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....9;. against Shubhankar P. Tomar, on account of dishonour of cheque No. 463151 drawn on Canara Bank, Patparganj Branch, Delhi for Rs. 4,99,610/-, and cheque No. 003252 drawn on HDFC Bank, Chander Nagar, Ghaziabad, Uttar Pradesh for Rs. 1,93,776/-, both dated 8th August 2016. As per the complaints, the cheques were drawn by Respondent No. 2 - complainant for discharge of the outstanding amount payable by him to JIPL. The cheques on presentation were dishonoured due to 'insufficient funds' vide memo issued by the respective banks on 12th August 2016. Thereupon, legal notice of demand was issued on behalf of JIPL by speed post and courier on 20th August 2016, which as per the tracking report of the postal authorities, was served on the Ghaziabad address on 24th August 2016, albeit the notice issued at the Delhi address was returned by the postal authorities with the remark "item delivery attempt/unclaimed" dated 23rd August 2016. 6. The facts stated noted above, though admitted, do not find any mention in the private complaint filed by Respondent No. 2 - complainant on 23rd December 2017, which is the subject matter of the present appeal and in which the summoning order date....
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....sted by e-mail on 2nd December 2014 and several reminders were sent thereafter. Respondent No. 2 - complainant had thereupon informed JIPL on 13th July 2015 and 19th August 2015 that 242 buckets of 20 litres and 4 litres were available and should be taken back and adjusted against the outstanding amount. However, no reply was received in spite of reminders. E-mails were also written on 4th January 2016 and 11th January 2016. Since there was no response from JIPL, Respondent No. 2 - complainant had written letters to Jotun S/S and Orkala ASA, the shareholders of JIPL. They had also sent a registered notice to JIPL stating that Rs. 6,37,252.16p., shown as outstanding amount due and payable by Respondent No. 2 - complainant to JIPL, was forged and incorrect. 8. At the pre-summoning evidence stage, two witnesses, namely Shubhankar P. Tomar and his employee Sakshi Tilak Chand, were examined. Shubhankar P. Tomar had deposed that JIPL had violated the terms of service and had cheated him, and a wrong outstanding amount of Rs. 6,37,252.16p. had been shown as payable. He had not received a copy of the written agreement for the purchase of paints from JIPL. He had furnished one blank cheq....
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....akbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547; Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609; and Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749. Proviso to Section 200 of the Code is not applicable in the present case. 12. In the present case, the trial court did not issue summons Under Sections 420 and 471 of the Indian Penal Code, or for that matter, invoke the provision relating to conspiracy Under Section 120B of the Indian Penal Code. Although the summoning order dated 19th July 2018 does not deal with these Sections of the Indian Penal Code, we deem it imperative to examine the ingredients of the aforesaid sections, and Section 406 of the Indian Penal Code, and whether the allegations made in the complaint attract the penal provisions under the relevant Sections of the Indian Penal Code. We have undertaken this exercise in order to carry out a complete and comprehensive analysis of the factual matrix and the legal provisions, and Rule out possibility of an error to the detriment of Respondent No. 2 - complainant. 13. Section 406 of the Indian Penal Code 406. Punishment for criminal breach of trust.--Whoever com....
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.... (Explanations 1 and 2 and illustrations (a) and (e) to Section 405 of the Indian Penal Code are excluded, as they are irrelevant.) For Section 405 of the Indian Penal Code to be attracted, the following have to be established: (a) the Accused was entrusted with property, or entrusted with dominion over property; (b) the Accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. 14. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. Sudhir Shantilal Mehta v. Central Bureau of Investigation, (2009) 8 SCC 1. ....
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....ng the contours, this Court in Mohd. Ibrahim and Anr. v. State of Bihar and Ors. (2009) 8 SCC 751. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent No. 2 - complainant. We respectfully concur with the clarification as well as the ratio explaining Section 415, 464 etc. of the Indian Penal Code., observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the Accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security. 17. In the present case, the ingredients to constitute an offence Under Section 420 read with Section 415 of the Indian Penal Code are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415 of the Indian Penal Code. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonest....
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....sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. Section 470 lays down that a document is 'forged' if there is: (i) fraudulent or dishonest use of a document as genuine; and (ii) knowledge or reasonable belief on the part of the person using the document that it i....
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.... for the offence Under Section 471 of the Indian Penal Code. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre-summoning evidence. For completeness, we must record that the Appellants have placed on record the dealership agreement dated 11th April 2012, which, inter alia states that JIPL has a discretion to establish direct contractual relationship with specific customers, if JIPL feels they can be served better. Further, in such a situation, the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had wrongly recorded Respondent No. 2 - complainant as the buyer, it is not doubted that Manav Rachna International was the consignee. At best, Respondent No. 2 - complainant would not be liable, had Manav Rachna International failed to pay. Non-payment is also not alleged in the complaint or the pre-summoning evidence. Reliance on objections vide e-mails dated 4th July 2014 and 21st July 2014 are of no avail, as they are for the period prior to 31st July 2014, when the bill/invoice was raised. 20. It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute r....
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....ttempts are not be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Limited and Ors. v. K.M. Johny (2011) 13 SCC 412, as it refers to earlier case laws in copious detail. In Thermax Limited and Ors. (Supra), it was pointed that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the Accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and h....