WYETH LIMITED & ORS. versus STATE OF BIHAR & ANR. on 11 August 2022

1. Leave granted.

2. Aggrieved by an order passed by the High Court of Judicatureat Patna dismissing a petition under Section 482 of the Code of CriminalProcedure, 1973 (for short “Cr.P.C”) for quashing an FIR registered atthe instance of the second respondent herein, the appellants have comeup with the above appeal.

3. Heard the learned senior counsel appearing for the appellants,the learned standing counsel for the State of Bihar and the learned standingcounsel appearing on behalf of the respondent No.2, who was thecomplainant.

4. The respondent No.2 was engaged by appellant no.1 as itsCarrying and Forwarding agent (C&F), on certain terms and conditions,reduced into writing. The agreement continued from time to time untilFebruary-2012.

5. Thereafter disputes arose between appellant No.1 andrespondent No.2 which led to appellant No.1 filing a civil suit on the fileof the High Court of Judicature at Bombay, in CS No.1432 of 2012. Inthe said suit, the High Court passed an order appointing a Court Receiverto take possession of the goods including medicines belonging to appellantNo.1, which were in the possession of respondent no.2. The CourtReceiver seems to have executed the warrant and recovered possessionof certain goods, the details of which are not relevant for our presentpurpose.

6. Apart from filing a civil suit, appellant No.1 also filed a criminalcomplaint against respondent No.2 for alleged offences under Sections406 and 420 IPC. By an order dated 14.08.2013, the learned Chief JudicialMagistrate, Patna took cognizance and issued summons to respondentNo.2.

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A7. Thereafter respondent No.2 filed a criminal complaint before thelearned Chief Judicial Magistrate, Patna. On 12.12.2013, the learnedChief Judicial Magistrate, Patna passed an order directing the copy ofthe complaint to be forwarded to the Patliputra Police Station, forregistration of an FIR against the appellants herein. Pursuant to the saidorder, the Patliputra Police Station registered an FIR in Crime No.17 ofB2014 on 07.01.2014, against the appellants herein, for alleged offencesunder Sections 406, 420, 408, 460, 471, 384, 311, 193, 196 read withSection 120-B IPC.

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8. Challenging the FIR so registered, the appellants filed a petitionin Criminal Miscellaneous Petition No.13742 of 2014 on the file of theCHigh Court of Judicature at Patna, under Section 482 Cr.P.C seekingthe quashing of the same. When the said petition came up for finalhearing in the year 2018, the Court was informed that the police hadalready filed a charge-sheet and that the Chief Judicial Magistrate hadtaken cognizance of the same.D

9. In the light of the subsequent development as aforesaid, theHigh Court of Judicature at Patna dismissed the quash petition onthe only ground that it was not proper to keep the matter pending anyfurther. The High Court did not choose to go into the merits of thecontentions, despite the fact that appellant No.1 moved an application inEIA No.1015 of 2014 for bringing on record the charge-sheet and also forinclusion of a prayer for quashing the charge-sheet.

10. Aggrieved by such a disposal of their quash petition, theappellants are before this Court.

11. The primary contention of Mr. Mukul Rohatgi and Mr. GopalFJain, learned senior counsel appearing for the appellants is: (i) that thecomplaint filed by respondent No.2 does not disclose the commission ofany offence; (ii) that the complaint filed by respondent No.2 was only acounter blast to the civil suit filed by appellant No.1 and a criminalcomplaint lodged by the appellants against respondent No.2; (iii) thatGthe High Court overlooked the pendency of an application for bringingon record the charge-sheet and for the inclusion of a prayer for quashingof the charge-sheet.

12. In response, it is contended by Mr. Narender Hooda, learnedsenior counsel for respondent No.2 that though the appellants moved anapplication for bringing on record the subsequent development of filingH

of the charge-sheet and also for inclusion of a prayer for quashing thecharge-sheet, the appellants were negligent in not pressing for the sameat the time of hearing of the quash petition. According to the learnedsenior counsel for respondent No.2, the appellants sought adjournmenton several occasions, without pressing for an order in the InterlocutoryApplication and that therefore the Court found it not proper to keep thequash petition pending, impeding the trial.

13. Before going into rival contentions, it would be appropriate tohave a look at the criminal complaint filed by respondent No.2 on thefile of the Chief Judicial Magistrate, Patna, under Section 200 Cr.P.C,which formed the foundation for the Magistrate passing an order underSection 156(3) Cr.P.C, the registration of the FIR by the police and thefiling of the charge-sheet. In sum and substance, what was alleged inthe said complaint was as follows:

(i) that respondent No.2 is a Clearing and Forwarding agentfor different pharmaceutical companies;

(ii) that appellant No.1 hired the services of respondent No.2as its Clearing and Forwarding agent to carry out varioustasks including the storage of medicines in the godown,distribution of the same and corresponding with theGovernment.

(iii) that appellant No.1 acquired another company which hadtaken on rent, a godown situate in the campus of PatnaCold Storage Private Limited;

(iv) that at the instance of the appellants, respondent No.2provided manpower for the distribution of the products ofappellant No.1 and they worked under the supervision ofthe managerial staff of appellant No.1;

(v) that certain service charges were payable to respondentNo.2 for the services so rendered;

(vi) that in the meantime the rental agreement for the godownexpired and hence respondent No.2 was not allowed tostore the drugs in the godown;

(vii) that on account of the same, the agreement executed byappellant No.1 in favour of respondent No.2 becameinoperative; A

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A(viii) that through a supplementary agreement dated 26.11.2004,new conditions were incorporated;

(ix) that at the time of execution of the supplementaryagreement, it was assured that on and from 1.04.2005,respondent no.2 will be entitled to get the entire work handedBover to them by having the custody of the godown;

(x) that the appellant No.1 also took a bank guarantee fromrespondent no.2 in a sum of Rs.5,00,000/-

(xi) that without any prior intimation to respondent no.2, theappellants locked up the godown in 2012.C

(xii) that respondent No.2 came to know about a newwarehousing agreement entered into by appellant No.1behind the back of respondent No.2;

(xiii) that whenever respondent No.2 raised a question ofDexecution of power of attorney in their favour, the appellantsthreatened to terminate the agency, forcing the respondentNo.2 to part with Rs.2,00,000/-per annum;(xiv) that due to the non-execution of the power of attorney from2004 till 2012, respondent No.2 could not act as C&F agent; E(xv)that the appellants made use of the furniture and fixturesbelonging to respondent No.2 kept in the godown.(xvi) that for appointing them as C&F agent, the appellantsdemanded Rs.12 lakhs, but respondent No.2 refused to pay;

(xvii) that on 28.02.2012, the Regional Distribution Manager ofFappellant No.1 locked the godown and relieved respondentNo.2.(xviii) that the furniture and fixtures of respondent No.2 are stillinside the godown; and

(xix) that all the above acts showed that the appellants conspiredtogether and committed the offences of cheating, forgeryand breach of trust.

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14. A careful reading of the complaint, the gist of which wehave extracted above would show that none of the ingredients of anyof the offences complained against the appellants are made out. Even ifH

all the averments contained in the complaint are taken to be true, theydo not make out any of the offences alleged against the appellants.Therefore, we do not know how an FIR was registered and a charge-sheetwas also filed.

15. The contention of the learned senior counsel for respondentNo.2 that the Court has to take note of the final report filed by the policealong with the statement of witnesses, could have been accepted by us,if the whole thing had emanated from a First Information lodged withthe police. Respondent No.2 actually filed a private complaint underSection 200 Cr.P.C, which was referred by the Court under Section 156(3)to the police. When this complaint itself disclosed nothing more than acommercial relationship which broke, it is not possible for respondentNo.2 to enlarge the scope of his complaint by merely adding the languageused in the text of the Indian Penal Code.

16. Admittedly appellant No.1 had instituted a civil Suit on the fileof the judicature at Bombay and also obtained an order for theappointment of a Court Receiver to take possession of the goods lying inthe godown. The appellants have also lodged a criminal complaint, whichwas refused to be quashed by the High Court of Patna. It is only afterthe appellants filed a civil suit and a criminal complaint that respondentNo.2 chose to file his complaint.

17. The High Court was clearly in error in overlooking theapplication for bringing on record the subsequent development of thefiling of the charge-sheet and the prayer for inclusion of the relief ofquashing of the charge-sheet in the original petition.

18. It is too late in the day to seek support from any precedents,for the proposition that if no offence is made out by a careful reading ofthe complaint, the complaint deserves to be quashed.

19. Therefore, the appeal is allowed. The impugned order of theHigh Court is set aside and the FIR and the charge-sheet against theappellants are quashed. There will be no order to costs.

Nidhi Jain

Appeal allowed.

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