Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., addressed a matter involving the determination of jurisdiction with regard to the occurrence of a crime.

The instant petition was filed under Section 482 of the Criminal Procedure Code, 1973 in regard to quashing an FIR for the offences under Sections 420/406 of Penal Code, 1860.

Facts of the instant case:

Since 2009, the petitioner through his sole partnership had been undertaking the business of fresh/dehydrated onions and garlic and other perishable items export to various countries like Europe, Gulf and rest of Asia.

In January 2018, the Complainant’s office, Tiger Logistics, approached the Petitioner and one Makbul Sheikh- salesman of Tiger Logistics. Makbul Sheikh represented to the petitioner that respondent 2 is a commission agent and can provide cost-efficient and reliable services.

Petitioner, based on the transit time of 21 days promised by Tiger Logistics, entered into a sales contract with his customer Sadro SRL, an importer based in Italy. Upon such commitment, the Petitioner provided 13 bookings to Respondent 1 for 26 containers.

The Petitioner only as a goodwill gesture as a sincere exporter and upon the insistence of the representatives of Tiger Logistics paid an amount of Rs.10,76,100 through cheque.

Over the month of January 2018, petitioner had sent 26 shipments of fresh onions through but the shipment did not reach the Port f Naples within 21 days.

Petitioner issued an email to the representatives of Tiger Logistics based out of Gujarat expressing his concerns with regards to the delay of 14 days in the delivery of the shipment of fresh onions.

Due to the Petitioner’s growing concern over the delay in delivery of shipments and risk of loss with every passing day, the Petitioner on 16-04-2018 issued another email to the representatives of Tiger Logistics based out of Gujarat expressing his concern over the delay.

The above-stated delay was acknowledged and accepted and in light of the same representatives of the Tiger Logistics apologized for the delay in the delivery.

However, to the dismay of the petitioner, there was complete failure on the art of the logistics service as promised.

Petitioners were subjected to a huge loss due to the delay in shipments. Respondent 2 started demanding approximately Rs 37 lakhs from the petitioner. Since there was an utter failure of shipping services provided by Tiger Logistics which cannot claim any part of the payment from the petitioner.

Since the petitioner did not pay the above-stated amount, present FIR was registered against the petitioner.

Analysis, Law and Decision

Bench referred to the Supreme Court decision in V.V. Jose v. State of Gujarat, (2009) 3 SCC 78  wherein it was held that even in a case where allegation were made in regard to the failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 IPC could have been said to be made out.

Further, it was held in the above that, a matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent.

Court in regard to the instant matter made an observation that:

“It is trite that an inquiry and trial with respect of an offence shall be conducted by the Court within whose local jurisdiction occurrence in question is said to have taken place and thereby cause of action has arisen. Section 178 and Section 179 of CrPC. are merely exceptions to this principle enumerated in Section 177, and their scope should not be enlarged on analogous consideration.”

Bench added that for determination of offences alleged to have been committed under Section 406 of the Penal Code 1860, Section 181 of CrPC lays down the jurisdiction of such court where “the offence was committed or any part of the property which is the subject of the offence was received or retained.”

 Jurisdiction and Breach of Trust

In view of the above-stated, Court held that,

Since the transaction between the parties in relation to the transaction of goods took place in Gujarat, the representations and meeting took place in Gujarat, the goods were shipped from Pipavav Port Gujarat, bill of ladings were released from Ahmedabad Gujarat, the invoices were raised by the entity based out of Gujarat and the jurisdiction of such invoices were subject to the court of Gujarat, therefore, applying the direct principles of Section 181, only the court situated in Gujarat can exercise jurisdiction over the alleged criminal breach of trust, if any.

 In case of Jai Prakash v. Dinesh Dayal: (1989) 39 DLT 376, this Court held that where the accused is carrying on business in a city, agreement to supply to complainant’s branch office at that city is entered within the local jurisdiction of that city, institution of complaint at New Delhi on the ground that the complainant’s head office situated there, is without jurisdiction.

In view of the above-discussed law and the facts and circumstances of the case, the registration of FIR in question in Delhi is an abuse of the process of law.

“Investigating Agency and Court should not be made an instrument of compelling a party to come to a place far away from his own place, to submit to the jurisdiction of a Court which actually has none.”

Hence, in the instant case, FIR was without jurisdiction and therefore the complainant attempted to seek unlawful recovery of money which was purely commercial matter.[Ramesh Boghabhai Bhut v. State, 2020 SCC OnLine Del 1475, decided on 23-11-2020]

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. while allowing the application under Section 482 CrPC observed that even the law provides that it may not be necessary for every criminal offence to mete out punishment, particularly, if the victim wants to bury the hatchet.

In the instant case, applicant 1 is the husband and applicant 2 is the brother-in-law of opposite party 2 (OP). Due to non-fulfilment of dowry demands, OP was tortured, beaten and harassed and thereby made OP lodge an FIR against the applicants, her father-in-law and sister-in-law.

On the request of applicants, time was granted to them to make arrangement of payment to settle the dispute amicably. Afterwards, a joint affidavit was filed by the applicants and OP submitting that they have settled their matrimonial dispute outside the Court and they have no grievance against each other. The settlement was based on certain terms and conditions like OP will receive an amount of Rs 22 lakh from applicant 1 and would not prosecute each other or family members with regard to present matrimonial dispute between them.

After observing the submissions of the parties, the Court looked into some relevant judgments of the Supreme Court where guidelines for quashing of criminal proceedings on the basis of compromise and amicable settlement of the matrimonial dispute between the parties concerned was laid down.

In Madhavrao Jiwajirao Scindia v. Sambhaji-Rao Chandrojirao Angre, (1988) 1 SCC 692, it was laid down that the inherent power under Section 482 CrPC should be used where special features appear or it is expedient and in the interest of justice to permit a prosecution to continue.

In G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693, the Supreme Court made some apt observations in relation to matrimonial disputes. Little matrimonial skirmishes suddenly escalate which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved. Instead of fighting out in the Court, the parties should amicably terminate their disputes.

In Swati Verma v. Rajan Verma, (2004) 1 SCC 123 similar to the present case, the Supreme Court had quashed the criminal proceedings under Sections 498A and 406 IPC before the CJM as the divorce litigation between the sparring spouses was decided on the basis of a compromise.

With these cases referred and a few others, the Court observed that If the offender and victim want to move on in matrimonial cases, they may be allowed to compound the offences in terms of the settlement.[Alok Jaiswal v. State of U.P., Application u/s 482 No.  27720 of 2019, decided on 08-08-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Pradeep Kumar Srivastava, JJ. affirmed the Judgment of lower court granting a divorce to a lady under Section 13(1) of the Hindu Marriage Act, 1955, on the ground that her husband committed forcible unnatural sex with her.

The issue, in this case, was as to whether a marriage can be dissolved on the basis of allegations of forcible unnatural sex with wife. Facts in the case were that a lady (respondent herein) lodged an FIR against her husband (appellant herein) for offences under Sections 498A, 323, 504 and 377 the Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. She filed a petition seeking divorce on the grounds that her husband committed forcible unnatural sex with her several times after marriage. On her refusal to comply with his demands, he beat her up and threatened to not spare her 5-year old daughter and make sexual relations with her as well. He also demanded Rs 40 lakhs and a car in dowry after marriage. She was granted divorce on the basis of her allegations. Husband challenged the judgment of the lower court by way of the present appeal, on the ground that there was no evidence of dowry demand, harassment or unnatural sex. Further, it was argued that medical report had been ignored and the lower court had relied upon the unsupported solitary statement of his wife by ignoring contradictions in her own testimony.

The Court pointed out that no cross-examination had been done by the husband on the point of unnatural sex because of which it was assumed that those facts had been proved against him. Regarding the contention that wife’s statements were not supported by any witnesses, it was concluded that all the matrimonial wrongs were done inside the wedlock which meant that these were private affairs of the parties. Hence, gathering independent witnesses was not possible. Regarding medical examination, it was concluded that the petition for divorce was filed much after the date of the incident of unnatural sex and sodomy so the medical report could not be obtained.

The Court agreed with the view taken by the Kerala High Court in Bini T. John v. Saji Kuruvila, 1997 SCC OnLine Ker 27 and Karnataka High Court in Grace Jayamani v. E.P. Peter, 1981 SCC OnLine Kar 208 that unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a woman or wife was a criminal offence and a marital wrong amounting to cruelty which was a good ground for dissolution of marriage. It was observed that the standard of proof required in a matrimonial case is preponderance of probability.

The Court also noted that appellant’s first wife had divorced him for similar reasons, which fact supported the wife as far as unnatural sex was concerned. It was held that since the wife was not a consenting party, she would not be in the position of an accomplice; and her testimony could be accepted without corroboration if it inspired confidence. Thus, the impugned judgment was affirmed and the appeal was dismissed.[Sanjeev Gupta v. Ritu Gupta, 2019 SCC OnLine All 2255, decided on 24-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench of Adarsh Kumar Goel, CP and K. Ramakrishnan (JM) and Dr Nagin Nanda (EM), stated that,

“Inspite of the report showing serious violation of law, Haryana State Pollution Control Board has shown either negligence, collusion or incompetence.”

In the present case, the issue for consideration is an alleged violation of environmental norms by Piccadilly Agro Distillery Industries Ltd. A Joint Committee was asked for the report for the stated issue.

The report filed by the committee reported violations of environmental norms by the Units which were required to be remedied. In the stated report, particular mention was made with regard to malfunctioning of ETP and storage capacity of the spent wash. Other steps required were for reducing smell nuisance and to undertake further operations.

Tribunal found a notice issued under Sections 21/22 of the Air (Prevention and Control of Pollution) Act, 1981 and 25/26 of Water (Prevention and Control of Pollution) Act, 1974 asking the unit to submit an action plan to control odour and spillage of leachate.

Further, the bench stated that State PCB may now forthwith take steps apart from considering closing the unit till compliance of norms to protect the public health of inhabitants and to uphold rule of law failing which action may have to be initiated against the Chairman and Member Secretary of State PCB for the failure. It is the duty of regulatory authorities to take stringent preventive and punitive action. Deterrent compensation must be recovered for restoring the damage.

“Violation of environmental norms affects right to life and is a criminal offence.”

The matter is further listed for consideration on 19-07-2019.[Gram Seva Samiti v. Ministry of Environment, Forest and Climate Change, 2019 SCC OnLine NGT 44, Order dated 29-03-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of T.V. Anil Kumar, J., while pronouncing an order quashed the criminal proceedings stating them to be of a civil dispute.

The facts of the case as presented in the present case are that, the prosecution case as against the petitioner is that, he after having obtained a mobile post-paid connection in his name, failed to discharge his liability for user charges for a period of 5 months. Allegation was that petitioner incurred a monetary liability of Rs 97,678 and after making a part payment of Rs 10, 580 he kept the balance in arrears. According to the prosecution, the default amounts to an offence of cheating punishable under Section 420 IPC.

Petitioner’s case is made out in the following manner, that the transaction in question is based on an agreement between the parties which turns the alleged liability to be purely of civil nature, due to which the petitioner sought consequential criminal proceedings to be quashed.

High Court on marshalling the materials on record, concluded by stating that, the transaction involved between the parties is of a civil dispute as a purported liability of the petitioner seems to have been arisen from breach of promise or agreement.

“Mere breach of trust or agreement will not by itself amount to a criminal offence under Section 420 IPC.”

Therefore, as the legal proposition does not match the materials on record as well as the allegations, the criminal proceedings require to be quashed in view of the above stated. [Abdul Hakkem v. State of Kerala, 2019 SCC OnLine Ker 974, Order dated 08-03-2019] 

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Ahsanuddin Amanullah, J. dismissed a criminal petition filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of lower court’s order whereby a prima facie case under Sections 420 and 120-B of the Indian Penal Code, 1860 was made out against petitioner.

In the present case, respondent 2 had on petitioner’s persuasion, he invested in a company named Panjon Finance and an agreement was executed between the parties where it was stipulated that shares would mature after four years when repayment would be made to the respondent by the company. It is alleged that upon expiry of the term, despite several reminders and request to pay back the amount as per terms of the agreement, the same was not done leading to filing of a complaint under IPC. 

Learned counsels for the petitioner Mr Ajay Kumar Thakur, Mr Nilesh Kumar, Mr Pravin Kumar and Mr Udbhav submitted that the petitioner was merely an employee of the company and since he had only signed as a witness on the agreement, he could not be made criminally liable for non-performance of terms of the agreement. The dispute was purely a money dispute which could be resolved through civil law.

The Court opined that petitioner, in the capacity of the company’s local manager company, persuaded the respondent for investment.  Respondent 2 had relied on him and his trust was belied by the petitioner. As such, a prima facie case was made out against the petitioner. Relying on the dictum in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 it was held that there was no infirmity in lower court’s order and the petition was dismissed.[Dharmendra Kumar v. State of Bihar,2018 SCC OnLine Pat 2218, decided on 13-12-2018]