ALL CARGO MOVERS (I) PVT. LTD. & ORS. versus DHANESH BADARMAL JAIN AND ANR.

Citation: [2007] 11 S.C.R. 271 · Decided: 12-10-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

ALL CARGO MOVERS (I) PVT. LTD. & ORS. 
A 
v. 
DHANESH BADARMAL JAIN AND ANR. 
OCTOBER 12, 2007 
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.) 
B 
Code of Criminal Procedure, 1973: 
ss. I 90 and 482-Exercise of power under-Dispute between C 
parties arising out of a contract of carriage-Suit with regard to the 
said dispute pending before High Court-Criminal complaint filed 
alleging breach of trust-Magistrate issuing summons-Petition for 
quashing summons dismissed by High Court-HELD: Breach of 
contract simplicitor does not constitute an offence-Allegations in D 
complaint petition must also disclose necessary ingredients of the 
offence-On facts, complaint petition does not disclose any averment 
with regard to ingredients of offences u/ss 406 and 420 !PC-Where 
duringpendency of a civil suit, a criminal complaint is filed, court may, 
for ascertaining correctness of allegations, notice, besides the pleadings 
in the suit, correspondence exchanged between parties and other. E 
admitted documents-Criminal proceedings should not be encouraged 
when it is found to be malafide or otherwise an abuse of process of 
court-Superior Courts while exercising this power should strive to 
serve ends ofjustice-Impugned orders set aside-Penal Code, I 860-
ss. 406 and 420-Administration of Criminal Justice. 
F 
Respondent no. 1 entered into a contract of carriage with the 
appellant for delivery of certain consignments to a company, namely, 
'UA', in Kenya. Appellant asked 'MN', its agent in Kenya, to 
arrange the delivery of the said consignments. The goods said to G 
have been delivered by the agent or the appellant to the original 
consignee were allegedly rejected by the latter as being inferior in 
quality. The goods were then said to have been delivered to another 
company. Respondent no. 1 issued a notice to the appellant and 
271 
H 
272 
SUPREME COURT REPORTS 
[2007] 11 S.C.R. 
A others stating that they effected delivery of the consignments without 
production of original Bills of Lading and committed a breach of 
contract of carriage and acted in violation thereof. A suit was tiled 
by respondent no. 1 in this regard in the Bombay High Court. More 
than a year thereafter, respondent no. 1 filed a criminal complaint 
B against the appellants alleging commission of offence of criminal 
breach of trust by them for effecting delivery of consignments in 
connivance and causing criminal misappropriation of valuable 
property of the complainant. The accused filed a petition for quashing 
the order issuing summons to them, which was dismissed by the High 
c Court observing that the allegations made in the complaint, prima 
facie, disclosed the offence of breach of trust. Aggrieved, the accused 
filed the instant appeal. 
Allowing the appeal, the Court 
D 
HELD: 1.1. Breach of contract simplicitor does not constitute 
an offence; Allegations in the complaint petition must disclose the 
necessary ingredients of the offence. In the instant case, the 
allegations made in the complaint petition, even if given face value 
and taken to be correct in its entirety, do not disclose an offence. A 
E 
bare perusal of the complaint petition would show that it did not 
contain any averment in regard to the ingredients of the offence 
under Sections 406 and 420 of the Indian Penal Code. 
[Para 14 and 17] (279-B, C, D; 278-D] 
1.2. Where a civil suit is pending and the complaint petition has 
F 
been filed after filing of the civil suit, the Court may, for the purpose 
of finding out as to whether the said allegations are prima facie 
correct, notice the correspondences exchanged by the parties and 
other admitted documents. Further, the Court may not only take into 
consideration the admitted facts but may also look into the pleadings 
G in the suit. No allegation whatsoever was made against the 
appellants in the notice. What was contended was negligence and/ 
or breach of contract on the part of the carriers and their agent. 
[Para 17 and 18] [279-B, C, D] 
H 
1.3. Criminal proceedings should not be encouraged, when it is 
ALLCARGOMOVERS(I)PVT.LTD.v.DHANESH 
BADARMALJAIN [SINHA,J.] 
273 
found to be mala fide or othenvise an abuse of the process of court. A 
Superior Courts while exercising this power should also strive to 
serve the ends of justice. The impugned judgment cannot be 
sustained and is set aside. [Para 17 and 22] [279-F; 281-E] 
G. Sagar Suri & Anr. v. State of UP. & Ors., [2000] 2 SCC 636; B 
Anil Mahajan v. Bhor Industries Ltd & A

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