Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr.

on 16 July, 2004

Andhra High Court Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr. on 16 July, 2004 Equivalent citations: 2004 (2) ALD Cri 305, 2004 CriLJ 4100 Author: B S Reddy Bench: B S Reddy ORDER B. Seshasayana Reddy, J. 1. This Criminal Revision case is directed against the order dated 7-10-2003 passed in Crl. M.P. No. 3779 of 2003 in C.C. No. 1020 of 2002 on the file of XXIII Metropolitan Magistrate, Hyderabad by which the learned Magistrate dismissed the application filed by the petitioners under Section 239, Cr.P.C. 2. Briefly, the facts are that the petitioners are A1 to A5 in the said C.C. The said C.C. arises out of a complaint presented by R2-M/S. Nagarjuna Construction Company Limited, which formed the basis for registering a case in Crime No. 630 of 2002 under Sections 403, 406, 409 and 420 of IPC. The complaint averments are that M/s. Diamond Cables Limited (petitioner No. 1 herein) agreed to supply the following materials to the complainant : 1. 600 KM AAA Rs. 27650 1,65,90,000 Conductors per KM for Price 2. ACSR Panther Rs. 67,500 87,750 1.3 KM per KM 3. ACSR Zebra Rs. 1,23,500 2,61,820 2.12 KM per KM The complainant was supposed to make the payment through a letter of credit. In view of certain administrative problems for arranging letter of credit, the complainant officials had further discussions with the officials of M/s. Diamond Cables Limited and it was mutually agreed in writing that the consideration money should be paid within 45 days from the date of supply and that the Purchase Order should be backed-up by Bank Guarantee. M/s. Diamond Cables Limited shall be entitled to invoke the Bank Guarantees only in the event of the complainant-company failing to pay the consideration money within the agreed period. The Purchase Order dated 3-8-98 was amended to reflect the above terms of payment of purchase consideration money vide letter of amendment dated 4-12-98 and which changes were accepted by M/s. Diamond Cables Limited vide their letter dated 10-12-98. As per the terms of the amended Purchase Order the complainant-company had furnished the Bank Guarantees for Rs. 203.00 Lakhs (Three Bank Guarantees) issued by State Bank of India, Industrial Finance Branch, Somajiguda, Hyderabad. The first consignment was on 17-3-99 and the last consignment was on 11-5-99. For the first consignment, the complainant-company had arranged payment of Rs. 97.55 lakhs by way of Hundi bearing No. 0910399LB00077 dated 9-4-1999 through State Bank of India, Industrial Finance Branch, Somajiguda, Hyderabad. The complainant-company had requested M/s. Diamond Cables Ltd. to return the Bank Guarantee dated 26-12-1998. The complainant was informed by M/s. Diamond Cables Limited that the concerned Director was out of the country and after his return, the Bank Guarantee would be returned. The complainant issued various reminders requesting M/s. Diamond Cables Limited to return the Bank Guarantee dated 26-12-1998. For the supply of material made by M/s. Diamond Cables Limited on 11-5-1989, the complainant-company had time to pay the consideration amount till the first week of July, 1998. But M/s. Diamond Cables Limited invoked all the three Bank Guarantees on 24-6-99 and collected Rs. 203.00 lakhs illegally and fraudulently and thereby cheated the complainant-company. The complainant-company issued notices on 3-2-2000, 26-2-2000 and 10-5-2000 demanding M/s. Diamond Cables Limited to refund the excess amount illegally and fraudulently claimed by them. M/s. Diamond Cables Limited instead of paying the amount resorted to claiming a further amount of Rs. 149.97 lakhs from the complainant-company and filed Special Civil Suit No. 843 of 2000 in the Court of
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Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr. on 16 July, 2004

Civil Judge (SD) at Vidharbha. The complainant-company also made a counter-claim of Rs. 2,61,56,628.85 paise. The complainant-company also presented a complaint before XXIII Metropolitan Magistrate, Hyderabad against M/s. Diamond Cables Limited, its Chairman and Managing Director, Joint Managing Director and Vice-President (Marketing), who are the petitioners herein. The learned Magistrate forwarded the complaint to Station House Officer, Panjagutta under Section 156(3) of Cr.P.C. The Station House Officer, Panjaguptta received the complaint and registered a case in Crime No. 630 of 2002 under Sections 403, 406, 409 and 420, IPC and issued FIR. After usual investigation, the Station House Officer, Punjagutta Police Station laid a charge-sheet before the XXIII Metropolitan Magistrate, Hyderabad. The learned Magistrate took the charge-sheet on file as C.C. No. 1020 of 2002 and issued process to the accused. The petitioners earlier filed Crl. P. No. 487 of 2003 under Section 482, Cr.P.C. to quash the proceedings in C.C. No. 1020 of 2002. The said petition came to be allowed partly quashing the complaint in respect of the offence under Section 409, IPC while observing that the allegation in the charge-sheet made out a prima facie case under Sections 403, 406 and 420, IPC against the petitioners herein. Assailing the order, the petitioners have filed SLP (Cri) No. 1517 of 2003. The Supreme Court by an order dated 25-4-2003 disposed of the said SLP as follows : "Heard learned counsel for the petitioners. There is much substance in the contention which has been raised by the learned counsel for the petitioners, but at the same time, as it is open to the petitioners to raise all these contentions at the time of framing of charges before the trial Court, this petition is not entertained at this stage mainly because this Court has repeatedly held that such pleas can be raised before the trial Court. It is also made clear that the petitioners may file an application for granting exemption from appearance before the trial Court. The trial Court would grant the same on an undertaking that on the date of posting of the case, the counsel on their behalf would remain present and would not ask for any adjournment on the ground that he is not having any instructions. Further the trial Court would decide the case on framing of the charges without being influenced by any observations made by the High Court or by this Court. Petition is disposed of accordingly." In view of the liberty given to the petitioners to agitate all their contentions before the trial Court at the time of framing the charges, they moved an application Crl.M.P. No. 3779 of 2003 under Section 239 of Cr.P.C. seeking discharge. The learned Magistrate on thorough consideration of the material brought on record and on hearing the parties dismissed the application by an order dated 7-10-2003. Hence, this Criminal Revision Case. 3. Since the petitioners/accused filed application under Section 239, Cr.P.C. before the trial Court seeking discharge it would be profitable to refer Section 239 of Cr.P.C. and it is thus : "Section 239. When accused shall be discharged : If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." The Magistrate shall discharge the accused recording reasons, if after : 1) considering the police report and documents mentioned in Section 173, Cr.P.C.; 2) examining the accused, if necessary; 3) hearing the arguments of both sides he thinks the charge against him to be groundless i.e. either there is no legal evidence or that the facts do not make put any offence at all. As the section expressly authorizes the use of statements of witnesses examined by the police for considering the question of discharge or of framing a charge, it must be construed as an exception to Section 162(1) of Cr.P.C. Section 239 has to be read along
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Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr. on 16 July, 2004

with Section 240 of Cr.P.C. Reading two sections together it clearly means that if there is no ground for presuming that the accused has committed, an offence, the charge must be considered to be groundless. The Magistrate is entitled and indeed has a duty to consider the entire material referred to in Section 239. In order to hold a charge groundless, there should either be no iota of evidence or the evidence should centra-indicate the offence or there should be other fundamental error in assuming cognizance of the offence. This provision of law is calculated to eliminate further harassment to the accused persons when the evidentiary materials gathered after a prolonged and thorough investigation of the occurrence falls short of minimum requirement, and therefore, the provision of law cannot be reduced into a dead letter and the accused persons made to understand the rigour of the futile trial where such a trial of materials available is palpably, not warranted against him. 4. The function of Magistrate under Section 239 of Cr.P.C. is not to marshal the evidence and judge the truth, varacity and effect of such evidence which the prosecution proposes to adduce and what weight to be attached to the probable defence of the accused. If there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed the offence, it has to pass an order under Section 240, Cr.P.C. 5. The trial Court under Section 239, Cr.P.C. or the High Court under Section 482 of Cr.P.C. is not called upon to embark upon an enquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighting or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. It has been held by the Supreme Court in Rajesh Bajaj v. State NCT of Delhi, the High Court or the Magistrate are also not supposed to adopt a strict hyper-technical approach to sieve the complaint through a collander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but no during the initial state. 6. In view of the legal position, as enunciated above, it has to be seen whether the FIR and the documents accompanying the final report under Section 173 of Cr.P.C. including the statements recorded by the prosecution under Section 161 of Cr.P.C., disclose the commission of any offence against the petitioner. The police during the investigation examined as many as eight witnesses and collected various documents relating to the transactions between the petitioners and the 2nd respondent-complainant-company. Accusations have been made against the petitioners for the offences under Sections 403, 406 and 420. Section 403, IPC deals with dishonest mis-appropriation of property. To constitute an offence under this section three essential facts have to be made out by the prosecution (1) entrustment of accused with property or with any domination over property; (2) misappropriation or conversion by the accused or his own use of that property, or disposition by him of such property in violation of any direction of law prescribing the mode in which such trust is to be discharged or any legal contract, express or implied, which the accused had made touching the discharge of such trust or wilfully suffering any other person to do so; and (3) misappropriation, conversion or disposal with dishonest intention. 7. Section 406 of IPC deals with punishment for criminal 'breach of trust. What is criminal breach of trust is defined in Section 405, IPC. The ingredients in order to constitute a criminal breach of trust are (i) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust. Section 420, IPC deals with the offence of cheating. The ingredients of the offence of cheating are : (1) there should be fraudulent or dishonest inducement of a person by deceiving him;
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Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr. on 16 July, 2004

(2) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induce to do or omit to do anything which he would not, do or omit if he were not so deceived; and (3) in cases covered by (2)(b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 8. The distinction between mere breach of trust and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement, which can be judged by his subsequent conduct. 9. Learned counsel appearing for the petitioners contends that the disputes between the petitioners and R2 complainant company are purely civil in nature and therefore the criminal proceedings initiated against them are per se illegal and they are entitled to be discharged under Section 239 of Cr.P.C. I do not see any substance in his contention for the reason that when civil as well as criminal remedy is available to a party, the aggrieved party cannot be completely barred from initiating criminal proceedings. I am fortified by the decision of Supreme Court in Pratibha Rani v. Suraj Kumar, for the aforesaid proposition. There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State, for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose is completely barred. The two types of actions are quite different in content, scope and import. 10. The principal accusation against the petitioners is that they having undertaken to return the Bank Guarantee dated 26-12-1998 worth Rs. 102.00 lakhs after receiving the consideration amount under first consignment dishonestly invoked the Bank guarantee and thereby cheated R2 complainant company. Yet another accusation is that the petitioner encashed the Bank guarantees even before the due date of amount. It is no more in dispute that R2 complainant company furnished three Bank guarantees worth Rs. 203.00 lakhs. As per the agreed terms between the petitioner and R2 complainant company, R2 has to pay the consideration amount within 45 days from the date of supply and the purchase order should be backed by the Bank guarantee. The petitioners shall be entitled to invoke the Bank guarantees only in the event of R2 failing to pay the consideration money within the agreed period. 11. Learned counsel for the petitioner submits that the Bank Guarantees were executed against any loss or damage caused to, or suffered, or would be caused to, or suffered by the petitioners company by reason of any breach of the terms and conditions of the agreement and as R2 complainant company committed breach of the terms of conditions, the petitioners company invoked the Bank Guarantee and realised the amount. He further submits that invocation of Bank Guarantees, in the circumstances of the case, does not constitute any offence and therefore, the petitioners are entitled to seek discharge for the offences under Sections 403, 406 and 420, IPC. He placed reliance on the decisions of the Supreme Court in Charanjit Singh Chadha v. Sudhir Mehra, , S.N. Palanitkar v. State of Bihar, , Alpic Finance Ltd. v. P. Sadasivan, ; C. B.I. v. Duncans Agro Industries Ltd., (1996) 2 Andh LD (Crl) 546 (SC) : (1996 Cri LJ 3501); U. Dhar v. The State of Jharkhand, and the decision of our High Court in Siddhartha Electronics v. Videocon International Ltd., (2003) 3 Cri 33 : (2003 Cri LJ 4038). The third cited decision relates to hire purchase agreement. It has been held therein that where the hire purchase agreement between the parties specifically gave authority to the non-banking finance Company to repossess the vehicle and their agents were given the right to enter any property or building wherein the motor vehicle was likely to be kept and under the hire purchase agreement, said Company continued to be the owners of the vehicle, no offence of cheating, criminal
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Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr. on 16 July, 2004

breach of trust or theft of vehicle could be said to have been committed by the Company, who was the owner of vehicle, when on failure of hirer to pay the instalments due, the Company took possession of the vehicle from the motor mechanic who was in possession of vehicle for certain repairs to be carried out. The hire purchase agreement in law is an executory contract of sale and confers no right in rem or hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the repossession of goods as per the term of the agreement may not amount to any criminal offence. The (5) cited decision also relates to hire purchase agreement. The facts in the above two and cited decisions and the facts of the case on hand are distinctive and therefore the above referred two decisions are not applicable to the facts of the case on hand. The (6) cited decision relates to floating charge created over the goods of the accused against credit facility obtained for, Bank. Therefore, this decision also is not applicable to the facts of the case on hand. In the (4) cited decision the Supreme Court held that exercise of inherent powers is available to the High Court to give effect to any dispute with regard to the proposition of law laid down by the Supreme Court in the above referred decision. 12. Learned counsel for the petitioner submits that the contract between the bank and the petitioners company is independent of the contract of supply between the petitioners company and R2 complainant company and therefore invocation of Bank Guarantee by the petitioners company does not in any way constitute the offence either under Section 403, 406 or 420, IPC. He placed reliance on the (7) cited decision. It is useful to refer the facts of the case in the cited decision. It is useful to refer the facts of the case in the cited decision and they are that Bokaro Steel Plant, a unit of Steel Authority of India Ltd. (for short, SAIL) awarded a contract to M/s. Tata Iron & Steel Co. Ltd. (for short, TISCO), Growth Shop for certain works. TISCO growth shop completed supply part of the work and erection part of the work was entrusted by to M/s. Tata Construction and Projects Ltd, (for short TCPL). TCPL in turn issued Tender Enquiry and awarded the work to M/s. Singh Construction Co., the complainant. According to the complainant after completing the work it demanded payment of the balance amount under the contract; from TCPL. The appellants therein are the Managing Director and President (Operations) of TCPL. When the complainant failed to receive the payment for the work done, they filed a complaint on 11th January, 2001 under Sections 403, 406, 420 and 120B, IPC at Bokaro. The concerned Magistrate took cognizance of the alleged offences and issued summons vide order dated 19-6-2001 to the appellants. The appellants therein challenged the said order by filing a Crl. M.P. 4780/2001 in the High Court of Jharkhand at Ranchi. The impugned order therein was passed by the High Court dismissing the said petition on 3rd May, 2002. Being on the facts referred to above, the Supreme Court held as follows : "IN our view, what is relevant is that the contract between TCPL and the complainant is an independent contract regarding execution of certain works and even assuming the case of the complainant to be correct, at best it is a matter of recovery of money on account of failure of TCPL or pay the amount said to be due under the contract. The complainant has alleged that TCPL has already received the money from SAIL for the work in question and it has misappropriated the same for its own use instead of paying it to the complainant and it is for this reason that the offences are alleged under Sections 403, 406 and 420 etc............. THUS admittedly the two contracts are independent of each other and payment under one has no relevance qua the other. It cannot be said that there is any dishonest intention on the part of the appellants nor it can be said that TCPL or the appellants have misappropriated or converted the movable property of the complainant to their own use. Since the basic ingredients of the relevant Section in the Indian Penal Code are not satisfied, the order taking cognizance of the offence as well as the issue of summons to the appellants is wholly uncalled for. Such an order brings about serious repercussions. So far as the appellants are concerned when no case is made out for the alleged offences even as per the complainant filed by the complainant, there is no reason to permit the appellants to be subjected to trial for the alleged offences. Hence, the appeal is allowed. The impugned orders of the High Court as well as of Chief Judicial Magistrate are hereby ordered to be quashed."

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Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr. on 16 July, 2004

In the cited case there were two independent contracts. One was between Bokaro Steel Plant and M/s. Tata Iron and Steel Company Ltd. and the other was between Construction Company. Coming to the facts of the case on hand, the purchase orders were backed by the Bank Guarantees and therefore the Bank Guarantees were part and parcel of the agreement between the petitioner company and R2 complainant company with regard to the supply of material. Therefore, the cited decision has no application to the facts of the case on hand. In the last i.e. (8) cited decision our High Court held that in order to constitute offence of cheating, intention to deceive must be in existence at the time when inducement was made. There cannot be any dispute with regard to the above proposition of law. 13. Learned counsel for R2 complainant company submits that the very purpose of execution of the Bank Guarantees was towards consideration money and therefore the petitioners company is entitled to invoke the Bank Guarantees in case of the consideration money was not paid within 45 days from the date of supply. It is further submitted by him that the purpose for which the Bank Guarantees were executed is explicit from the letters dated 10-12-1998, 14-2-1998, 16-2-1999 and 22-5-1999. The petitioners company accepted the Bank Guarantees as substitution of L.C. limits. This is explicit from the exchange of letters between the parties. I deem it appropriate to refer to the contents of letter dated 4-12-1998 addressed by R2 complainant company to the petitioners company and the letter dated 10-12-1998 addressed by the petitioners company to R2 complainant company and the letter dated 28-12-1998 addressed by R2 complainant company to the petitioners company and also letter 16-2-1999 by the 2nd respondent complainant company. They read as follows : "Letter dated 4-12-1998 : "With reference to the above you are requested to accept the payment terms as 45 days credit supported by Bank Guarantee, since we have to obtain L.C. limits from Bankers, and which may take considerable time. On your acceptance of the above, we would arrange Bank Guarantee, as per the enclosed format." Letter dated 10-12-1998 : "We are in receipt of your Letter No. NCC/ APSEB/132/98.99 dated 4-12-1998 along with a Format of Bank Guarantee. We wish to inform you that as a special case we accept your Bank Guarantee as per the Format provided the Bank Guarantee is issued by an Nationalised Bank only. Kindly confirm the above immediately." Letter dated 28-12-1998 : . "With reference to the above enclosed please find a Bank Guarantee No. BG/IFB/ 98-99/CR.B1/34, dated 26-6-1998 for Rs. 1,02,00.000/- issued by State Bank of India, Industrial Finance Branch, Somajiguda, Hyderabad towards supply of 300 KM of AAA Conductors against the above order. You are requested to arrange to process the 300 KM of Conductor and offer for inspection within 15 days. We further inform you that the Bank Guarantee for the balance quantity would be arranged on hearing from you about your production programme. Please send us drawing and GTP for ACSR panther and Zibra Conductors for approval of our clients APSEB". Letter dated 16-2-1999 :
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Diamond Cables Ltd. And Ors. vs State Of Andhra Pradesh And Anr. on 16 July, 2004

"With reference to the above, enclosed please find the following Bank Guarantees, issued by State Bank of India, Industrial Finance Branch, Somajiguda, Hyderabad towards supply of ordered conductors. 1. BG No. 0910399BG000010 : For Rs. 51,00,000/2. BG No. 0910399BH000009 : for Rs. 50,00,000/You are requested to inform us the readiness of the ordered conductors. Please acknowledge receipt of above Bank Guarantees." It is explicit from the above letters, prima facie, that the Bank Guarantees were executed towards the consideration money. 14. Learned counsel appearing for the petitioners laid much emphasis on the terms and conditions mentioned in the Bank Guarantees. The Bank Guarantees reads as if they are executed against any loss or damage caused to, or suffered or would be caused to, or suffer by the company by reason of any breach by the said customers or any of the terms and conditions said to be contained in the agreement. Had the Bank Guarantees were not executed for consideration money, the petitioners company would not have stated in the letter dated 22-5-1999 that it would return the Bank Guarantees along with old PACs. The petitioners company having undertaken to return the first Bank Guarantee for Rs. 102.00 lakhs after receipt of the consideration money of Rs. 97.55 lakhs encashed the Bank Guarantees. The dishonest intention of the petitioner company is explicit in retaining the Bank Guarantee despite receiving the consideration money. As per the terms of the agreement between the parties, the petitioner company was to encash the Bank Guarantees in case of R2 complainant failing to pay the consideration money within 45 days from the date of supply. But the petitioners company encashed the third Bank Guarantee even before the expiry of the stipulated period. On thorough reading of the complaint, statements of the witnesses recorded during the investigation and the documents filed along with the charge sheet. I am in no doubt to conclude that there is, prima facie material to charge the accused for the offences under Sections 403, 406 and 420, IPC. The learned Magistrate considered the material brought on record in right perspective and dismissed the application. I do not see any reason to interfere with the impugned order. 15. In the result, this Criminal Revision Case fails and the same is dismissed.

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