Albert Bensley Ag and others v M/S AFL Private Limited and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929** **Crl.MC.No.902 of 2004 (C)** **-------------------------------** **CC.287/2002 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM** **....................** ## **PETITIONERS/ACCUSED 3, 5, 6, 7 AND 8:** **------------------------------------------------** **1. ALBERT BENSLEY AGED 40 YEARS, PARTNER M/S.SABBAMANS EXPORTS & IMPORTS VALIYAPARAMBIL, BENEDICT NAGAR, NALANCHIRA, THIRUVANANTHAPURAM.** **2. MANU.T.G.NAIR, AGED 37 YEARS, PARTNER M/S.SABBAMANS EXPORTS & IMPORTS SWATHI, THOTATHIL, TV.NAGAR, NEMOM, THIRUVANANTHAPURAM.** **3. C.G.NANDAKUMAR AGED 37 YEARS, PARTNER, M/S.SABBAMANS EXPORTS & IMPORTS PRASANTH, KOTTARA LANE, GOUREESAPATTOM P.O., THIRUVANANTHAPURAM.** **4. V.PRAMEELA GOPAL AGED 34 YEARS PARTNER, M/S.SABBAMANS EXPORTS & IMPORTS SREEMANDIRAM, VILAKKUMTHOTTATHIL, NEMOM P.O., THIRUVANANTHAPURAM.** **5. V.SUDHEER KUMAR AGED 40 YEARS, PARTNER, M/S.SABBAMANS EXPORTS & IMPORTS T.C.24/1606, PRAVEENA COTTAGE, THYCAUD P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.D.KISHORE** ## **RESPONDENTS/COMPLAINANT & STATE:** **------------------------------------------------** **1. M/S.AFL PRIVATE LIMITED, FORMERLY AIR FREIGHT LTD, T.C.9/798, RAMBAL MANSION, VELLAYAMBALAM, THIRUVANANTHAPURAM695 010, REPRESENTED BY ITS BRANCH MANAGER/ AUTHORISED REPRESENTATIVE SRI.P.M.RAMASWAMY.** -2- ## **Crl.MC.No.902 of 2004 (C)** ## **2. STATE OF KERALA REPRESENTED BY ITS** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.JOSEPH MARKOSE** **SRI.BINU MATHEW** **PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/01/2008, ALONG WITH CRL.M.C NO.3399 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## K.P.BALACHANDRAN, J. -----------------------------------------------Crl. M.C. Nos.902 & 3399 of 2004 -----------------------------------------------Dated this the 9[th] day of January, 2008 ## **ORDER** The first of these Crl.M.Cs is filed by accused Nos.3, 5, 6, 7 and 8 and the latter one is filed by accused No.9 in C.C.287/02 on the file of the Chief Judicial Magistrate's Court, Thiruvananthapuram. The said case is registered on the basis of a complaint (Annexure-IV in Crl.M.C.902/04 and Annexure-I in Crl.M.C.3399/04) filed by the first respondent complaining of commission by the petitioners of an offence punishable under Section 420 of the IPC. The prayer in these Crl.M.Cs is to quash the complaint aforesaid and all proceedings on the basis thereof in C.C.287/02 aforesaid. **==> picture [324 x 12] intentionally omitted <==** complaint on the basis of which was the above case registered is that accused Nos.2 to 8 who Crl. M.C. Nos.902 & 3399 of 2004 -2- are partners of the first accused firm engaged in business of export and import were causing export of perishable goods through the complainant/company; that for transport of vegetables, food stuffs and goods and articles exported to various countries by the first accused/firm there was a continuing account with the complainant and the total amount due to the complainant comes to Rs.18,12,044/- as on 09/02/01 towards freight charges that they have not paid up the amounts so due towards freight charges incurred by the complainant and thereby accused Nos.1 to 8 have committed cheating on the complainant and further that the 9th accused has started a concern by name “Legends Exports & Imports” and started sending goods of accused Nos.1 to 8 behind the back of the complainant without their making payment of amounts due to the complainant. Apart from the said allegation, there is no Crl. M.C. Nos.902 & 3399 of 2004 -3- other allegation in the complaint as against the 9th accused who is the petitioner in Crl.M.C.3399/04. 3. The counsel for the first respondent vehemently contended that the freight charges were incurred by the first respondent/ complainant on behalf of the accused Nos.1 to 8 in the case only on account of the promise that they made that they will make payments but for which the first respondent would not have incurred expenditure on account of the freight charges to various companies and that therefore, offence under Section 420 of the IPC is attracted as the conduct of accused Nos.1 to 8 falls within the definition of 415 of the IPC. **==> picture [324 x 10] intentionally omitted <==** respondent has relied on the decisions of the Apex Court in _M/s Indian Oil Corporation v. M/s NEPC India Ltd. & Ors. (AIR 2006 SC 2780)_ and _Rajesh Bajaj v. State NCT_ Crl. M.C. Nos.902 & 3399 of 2004 -4- _of Delhi & Ors. (AIR 1999 SC 1216)_ to contend that the complaint as against the petitioners will be maintainable and the proceedings are not liable to be quashed in a complaint under Section 482 of the Cr.P.C. I have carefully gone through the decisions. The decision in _M/s Indian Oil Corporation v. M/s NEPC India Ltd. & Ors.,_ on facts is not at all applicable to the facts of the instant case and as regards the decision in _Rajesh Bajaj v. State NCT of Delhi & Ors.,_ that also has no application to the facts of this case as the first respondent has no case that he was deceived or induced fraudulently or dishonestly to make payment of freight charges on their behalf on credit so as to accumulate the charges to Rs.18 lakhs and odd. It was up to the first respondent to see that unless the freight charges are paid the goods are not forwarded through flight and should not have allowed the amounts to accrue and accumulate Crl. M.C. Nos.902 & 3399 of 2004 -5- to such a huge amount as Rs.18 lakhs and odd. The allegations show only that some credit facility was afforded to accused Nos.1 to 8 by the first respondent/complainant so as to have business for him and subsequently, it so turned out that he incurred a loss for reason of not being able to realise the amount in time from accused Nos.1 to 8 for which the remedy is institution of civil suit only. 5. Having heard the submission of counsel for the petitioners in both these Crl.M.Cs and the counsel for the first respondent/ complainant in the case, I am of the view that there is no element of cheating in the instant case so as to attract a complaint for offence under Section 420 IPC. May be that the first respondent is entitled to advance a claim for an amount of Rs.18 lakhs and odd as against accused Nos.1 to 8 if they had transported goods through the agency of the Crl. M.C. Nos.902 & 3399 of 2004 -6- first respondent. All the same, the first respondent who has arranged transporting of goods for and on behalf of accused Nos.1 to 8 cannot complain of cheating when a running account was maintained for the expenses incurred and accused Nos.1 to 8 defaulted or failed in making payments of the amounts. The remedy of the first respondent lies in instituting a civil suit and not to approach the Magistrate with a complaint of the nature of Annexure-IV. The 9th accused started a similar business as the one in which the first respondent/complainant is engaged is no reason why he has to be made an accused in the case and his impleadment as an accused is illconceived. In any event, the complaint either as against accused Nos.1 to 8 or as against accused No.9 is not at all maintainable and the proceedings instituted on the basis of Annexure-IV complaint (Annexure-I in Crl.M.C. Crl. M.C. Nos.902 & 3399 of 2004 -7- 3399/04) deserves to be quashed allowing these Crl.M.Cs. 6. In the result, allowing these Crl.M.Cs, I quash the proceedings in C.C. 287/02 on the file of the Chief Judicial Magistrate's Court, Thiruvananthapuram as also Annexure-IV complaint (Annexire-I in Crl.M.C. 3399/04) on the basis of which the proceedings are so initiated. These Crl.M.Cs are thus disposed of. K.P.BALACHANDRAN, JUDGE kns/-