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TMI Blog2022 (1) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and resort to criminal proceeding. From the various admitted communication between the parties vide Annexure-6 it reveals that the informant company has given reply to the letter dated 05.09.2016 only after filing of the case on 06.02.2017 denying any liability to pay such amount on their part, making some counter claim from the petitioner company. From the documents on record, it reveals that the petitioner side has served written notice (vide Annexure-10 dated 19.08.2017) upon the respondent for arbitration and the respondent has also accepted the proposal (vide Annexure-11 dated 14.09.2017) showing willingness to appoint arbitrator of their choice. Pursuant to which the petitioner filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of sole arbitrator in terms of Clause 20 of the agreement dated 16.01.2015 which was registered as AP No. 1144/2017. In All Cargo Movers (India) Private Limited and Others -vs- Dhanesh Badarmal Jain and Another [2007 (10) TMI 620 - SUPREME COURT], Suneet Gupta - vs- Anil Triloknath Sharma and Others [2008 (4) TMI 837 - SUPREME COURT], Satishchandra Ratanlal Shah -vs- State of Gujarat [2019 (1) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the purview of the first category of the observation in State of Haryana vs. Bhajan Lal, [1990 (11) TMI 386 - SUPREME COURT] wherein it has been held that where the allegation 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, the power under Section 482 CrPC can be invoked. As discussed above and the present case, reading the averment in the FIR in its entirety, the ingredients of intentional deception on the part of the accused at the beginning of the negotiations/agreement has neither been expressly stated or indirectly suggested in the complaint.
The entire proceeding is quashed - petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, under Sections 406/408/420 IPC. It is submitted that as has been mentioned in the FIR, BBPL never asked for any money or dues payable to BBPL by the petitioner or had shown any intention to terminate the agreement. The FIR was dated 18.01.2017, but registered on 01.02.2017 and suddenly, on 06.02.2017, petitioner received a letter from the BBPL, making a counter claim of Rs. 1,36,97,352/- from the petitioner, contending that there is no any outstanding dues of Rs. 84,64,998/-, claimed by the petitioner, with an intention to defraud the petitioner by such belated reply, which is nothing but an afterthought. 6. The petitioner, after receipt of the said reply tried to seek an explanation from them, with a view to resolve the dispute in an amicable manner in terms of the agreement, as in the agreement there is an arbitration clause, but it was not responded. Suddenly, on 01.08.2017, at 09:00 pm, the petitioner was forcibly taken to his office at 96, D, Karaya Police Station by some unidentified persons, accompanied by the agents of the BBPL and identifying as Police Officers from CID, certain documents were seized from him and provided him the seizure list, arrest memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by the respondent no.2 and course of action that have undertaken since the day of execution of the agreement between the parties on 16.01.2015 and the transaction in this regard in detail, (for the sake of brevity all details is not narrated here). Respondent, however, denied that they never replied the letter dated 05.09.2016 (claiming certain amount as indicated above). 10. It is their stand that they have replied to the said letter on 06.02.2017, contending that M/s. Tea Mach (India) is the managing agent and their responsibility is to procure grains and deliver it to BBPL and to secure the refund of the due amount. Denying any outstanding amount in terms of the letter dated 05.09.2016, it is contended that the petitioners company itself has failed to discharge their obligation under the agreement, against the advance amount paid to the traders and hence not entitle to claim any amount of commission from the BBPL. 11. As regard the filing of the case before the CID, it is stated that a person can choose a police station to make his complaint of a cognizable offence and police is under obligation to register the FIR without delay in accordance with law. So far as the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e team and the alleged accused Sri Ajay Haldia was found present there. However said Ajay Haldia stated that the documents related to M/S Brahmaputra Biochem Pvt. Ltd. was at his office cum residence located at 96D, Karaya Road, Kolkata-19. Hence the team along with Sri Ajay Haldia went to Karaya Police Station and after taking police assistance from Karaya Police Station, the team went to the office cum residence of Sri Ajay Haldia at House No. 96D of Karaya Road. 15. On arrival, Sri Ajay Haldia produced documents including contract between M/S Brahmaputra Biochem Pvt. Ltd. and M/S Tea Mech (India) dated 16.06.2015 , Bank Statement covering the year 2015 of A/C No. 20099720148 of Indus-Ind Bank, etc. The documents produced by him were seized in connection with the case. As the documents corroborated the FIR of the case, hence arrest memo, notice u/s 50 CrPC was prepared to cause his arrest in connection with the case. But before serving the arrest memo and the notice u/s 50 CrPC, said Ajay Haldia pleaded that as he has undergone bye-pass surgery of his heart recently and was under heavy medication, he would not be able to travel to Guwahati at this health condition. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was never produced before the court. In fact, the petitioner was put under fear of arrest by showing arrest memo together with the seizure list only to obtain his signature in certain documents (as indicated above). Moreover, in spite of interim order of stay of investigation passed by this Court, the respondent no.1. in absolute violation of the same, issued further notice under section 41(A) which was also brought to the notice of this Court by way of supplementary affidavit, which discloses mala fide in the investigation. By annexing the order dated 11.06.2018, passed by Hon'ble High Court of Kalkata it has also been submitted that by the aforesaid order passed in AP No. 1144/2017, the Hon'ble Kolkata High Court has appointed Sri Taposh Mukherjee (Retd. Judge) as sole Arbitrator without any objection from the respondent no.2 and in such backdrop while the dispute of purely civil in nature based on the agreement between the parties and the arbitration clause has already been invoked as per clauses contained in the agreement, further continuance of the criminal proceeding is nothing but abuse of process of law. 18. I have heard the submission of learned counsel for both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l submission of the parties, let us start with the FIR which is reproduced below: "BRAHMAPUTRA BIOCHEM PRIVATE LIMITED CIN: U24119MH2010PTC268920 Date...................... To, Dated : 18th January, 2017, The Additional Director General of Police, CID, Assam Guwahati 7 Dear Sir, Sub:-FIR I have the honour to inform you that on 16th January, 2015 an agreement was executed between M/s Brahmaputra Biochem Pvt Ltd., and M/s. Tea Mech (India) a sole proprietorship concern of Mr. Ajay Haldia carrying on business from 96D, Karaya Road Kolkata 700019 to supply 5,000 Mt of grain viz., maize, rice etc to M/s. Brahmaputra Biochem Pvt Ltd., which is an alcohol manufacturing company situated at AIIDC, Chaygaon, district Assam. Tea Mech (India) has taken net amount of Rs. 1,36,97,352 through RTGS in various accounts nos. as per details attached herewith located at Burdwan (West Bengal) in the name of their own persons to supply the said grain but they did not supply the grain and neither returned the amount paid by M/s. Brahmaputra Biochem Pvt Ltd., On asking him regarding the transaction, he is not taking interest in supplying the contracted grains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt to first resolve such dispute/claim through mediation between them and in the event dispute is not resolved through such discussion, than after serving a written notice to the other party the claim shall finally settled by arbitration of a sole arbitrator under Arbitration and Conciliation Act and arbitrator shall be mutually appointed by the parties. 25. From the documents on record, it reveals that the petitioner side has served written notice (vide Annexure-10 dated 19.08.2017) upon the respondent for arbitration and the respondent has also accepted the proposal (vide Annexure-11 dated 14.09.2017) showing willingness to appoint arbitrator of their choice. Pursuant to which the petitioner filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of sole arbitrator in terms of Clause 20 of the agreement dated 16.01.2015 which was registered as AP No. 1144/2017. The Hon'ble High Court at Kolkata vide order dated 11.06.2018 on the basis of the said application on the mutual agreement between the parties has appointed one Retd. Judge of the Kolkata High Court as sole arbitrator to adjudicate the dispute between the parties. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... honest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning that is when he made the promise cannot be presumed. 29. In (2007) 14 SCC 776, All Cargo Movers (India) Private Limited and Others -vs- Dhanesh Badarmal Jain and Another; (2008) 11 SCC 670, Suneet Gupta - vs- Anil Triloknath Sharma and Others; and (2019) 9 SCC 148, Satishchandra Ratanlal Shah -vs- State of Gujarat and Another similar view has been reiterated that mere breach of promise, agreement or contract does not ipso facto constitute an offence criminal breach of trust under Section 405 IPC without there being clear case of entrustment. Further, it has been held that allegations in the criminal complaint must disclose necessary ingredients thereof. The court can for the purpose of finding out as to whether said allegations are prima facie correct, take into consideration the correspondence exchanged by the parties and other admitted documents. Criminal proceedings should not be encouraged while is found mala fide or otherwise abuse of the process of the court. Further, it is held that the superior court while exercising inh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , without satisfying as to whether ingredients of such offence has been made out. 33. As has been held by Hon'ble Supreme Court in Anil Mahajan - v- Bhor Industries Ltd. and another: (2005) 10 SCC 228, that the substance of the complaint is to be seen. Mere use of the expression "cheating" in complaint is of no consequence. In the present case, informant has expressed that they think accused petitioner has committed breach of trust by cheating by not repaying the amount & non-supplying the grains but there is no averment about deceit, fraudulent intention of accused at the time of entering into agreement wherefrom it can be gathered that the accused had the intention to deceive the complaint. That being so, only on assumption of the informant, a criminal prosecution cannot be initiated which has been done in this case. 34. Criminal law can be set into motion only on set of principles of law & procedure, not at the whims & caprice of a person. Use of language does not itself make out an offence, unless, ingredients of offence is prima facie made out in a complaint/FIR. Prosecuting authority, i.e. police has to play a neutral role in upholding the law & justice and a court of law, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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