SKN 11-APL-600.18.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 600 OF 2018 1. Tarun Junjhunwala Aged 63 years, Indian Inhabitant, residing at Flat No. 2003, B-Wing, Chaitanya Towers CHS Ltd. Appasaheb Marathe Marg, Prabhadevi, Mumbai, Maharshtra, India. 2. Sanjay Samrao Kulkarni Adult aged 48 years, Indian inhabitant, Residing at 42, YojtakArtek Apartment, Kalanagar, Bandra (East), Mumbai 400051, Maharashtra, India. … Applicants. V/s. 1. State of Maharashtra Through Government Pleader High Court, Bombay. 2. Patel Integrated Logistics Ltd., Through Legal Representative, Mr. Alex Anthony, Patel House, Plot No. 48, 5th Floor, Gazdar Bandh, North Avenue Road, Santacruz (West), Mumbai. Maharashtra, India. … Respondents. _______________________________ Mr.Mihir Gheewala with Mr.Rishit Badiani, Mr.Ketan Dave and Ms.Swati Jain i/b. A.S.Dayal & Associates for the Applicants. Ms.Megha Bajoria, APP for the Respondent-State. None for Respondent No.2. _______________________________ 1/9 SKN 11-APL-600.18.doc CORAM : RANJITSINHA RAJA BHONSALE , JJ. DATED : 27th JULY 2026. ORAL JUDGMENT :- 1. The present Application is filed seeking to quash and set aside the order dated 4th December 2017 passed by the 71st Metropolitan Magistrate Court, Bandra, Mumbai, issuing process against the Applicants under section 420 of the Indian Penal Code (for short “IPC”). 2. The complaint is filed by Respondent No.2 before the Metropolitan Magistrate, 71st Court, Bandra, Mumbai being C.C.No.138/SW/2015 under sections 420, 406 and 34 of the IPC. It is the case of the Respondent No.2 that, accused No.1. is in the business of cargo industries and induced Respondent No.2 to deliver certain cargo at various destinations across the country. That, the accused siphoned all the money received from the parties and did not pay any amount to the Respondent No.2. The accused wrongfully collected the said money from various customers whose cargo was delivered by the and used it for their own benefits. That, the accused used the services of Respondent No.2 but cheated upon them by not paying any amount. According to Respondent No.2 the total amount is Rs.1,36,03,359/-. It is on this basis the complaint has been filed seeking direction for investigation under section 156(3) of Code of Criminal Procedure (for short “Cr.P.C.”). 3. The learned Magistrate by an order dated 5th May 2016, directed 2/9 SKN 11-APL-600.18.doc the Police Inspector, Santacruz Police Station to investigate the allegations in the complaint and submit report. Accordingly, pursuant to the investigation, a report was submitted. The Senior Inspector of Police, Santacruz Police Station put his remark on the said report to state that, the entire dispute is of a civil nature. That, the statements of the Respondent No.2 and the witnesses were recorded on 31st October 2017, wherein the Respondent No.2 contended that they carried the material for accused No.1 and that accused collected the money from their clients and not paid to the Respondent No.2. 4. By order dated 4th December 2017, process was issued against the accused under section 420 read with section 34 of IPC. Learned Magistrate observed that the Respondent No.2 failed to make out case against the accused under section 406 read with 34 of IPC and therefore complaint for the said offence was rejected. The said order dated 4th December 2017 has been challenged before this Court. 5. By order dated 26th July 2018, notice was issued to Respondent No.2 and ad-interim relief was granted in terms of prayer clause (b). By order dated 1st March 2022, Rule was issued and hearing of the Application was expedited. Despite service, none appears for Respondent No.2. 6. Record indicates that Advocate Harshal Mirashi filed Vakalatnama on behalf of Respondent No.2 on 18th September 2018. On 28th October 2021, learned Advocate for Respondent No.2 had appeared. 3/9 SKN 11-APL-600.18.doc By order dated 4th February 2026, fresh notice was issued to Respondent No.2. The record indicates that, though Respondent No.2 is duly served none appears for Respondent No.2. An opportunity was already given to Respondent No.2 on 1st July 2026 and 16th July 2026 to appear in the matter. Again on 22nd July 2026, none appeared for Respondent No.2 and the matter was adjourned to today. However, today also none appears for Respondent No.2. The Application is pending before this Court since the year 2018. Respondent No.2 has chosen not to appear before the Court. In this view of the matter, the hearing is being proceeded with. 7. The learned Advocate for the Applicants submits that, the Applicants are original accused Nos.4 and 5. They were appointed as Professional Nominee (Non-Executive) Directors pursuant to the agreement dated 30th September 2010. That, the entire allegations of the alleged agreement of transportation are of 23rd July 2010 i.e. before the present Applicants were appointed as Nominee Directors of accused No.1. That, the allegation is of non-payment of dues for the period when the Applicants were not Directors of accused No.1, they were not concerned with day to day business of accused No.1 nor were, thus, connected with accused No.1. That, the cost of transportation was Rs.1,83,36,505/- and accused No.1 only paid Rs.44,00,000/- to Respondent No.2 and had not paid the balance amount of Rs.1,36,03,360/-. 8. The learned APP appearing on behalf of the State, submitted that 4/9 SKN 11-APL-600.18.doc the Applicants have directly approached this Court under section 482 of Cr.P.C., challenging the order of issuance of process without exhausting the remedy of filing a Revision Application under section 397 of Cr.P.C. 9. Before considering the facts of the case and examining whether a case for exercising the inherent powers of this Court under section 482 of Cr.P.C. (now Section 528 Bharatiya Nagarik Suraksha Sanhita, 2023) is made out, it would be necessary to refer to certain decisions of the Hon’ble Supreme Court on the said issues. 9.1 In Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370, it is observed as under: “6. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab [AIR 1960 SC 866] to Som Mittal v. Govt. of Karnataka [(2008) 3 SCC 574 : (2008) 2 SCC (Cri) 1 : (2008) 1 SCC (L&S) 910] has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] .) Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2) [Ed.: The intended provision seems to be Section 397(3). In this regard See (1) Krishnan v. Krishnaveni, (1997) 4 SCC 241 : 1997 SCC (Cri) 544; (2) Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124; (3) Kailash Verma v. Punjab State Civil Supplies Corpn., (2005) 2 SCC 571 : 2005 SCC (Cri) 5/9 SKN 11-APL-600.18.doc 538.] of the Code, the inherent power of the Court has been held to be available. 7. The power of the High Court can be exercised not only in terms of Section 482 of the Code but also in terms of Section 483 thereof. The said provision reads thus: “483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates.— Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.” The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. (See Krishnan v. Krishnaveni [(1997) 4 SCC 241 : 1997 SCC (Cri) 544] .)” 9.2 In Prabhu Chawla v. State of Rajasthan, (2016) 16 SCC 30, it is observed as under: “6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of the High Court under Section 482 CrPC is unwarranted. We would simply reiterate that Section 482 begins with a non obstante clause to state: “482. Saving of inherent powers of High Court.—Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more”. (Raj Kapoor case [Raj Kapoor v. State, (1980) 1 SCC 43 : 1980 SCC (Cri) 72] , SCC p. 48, para 10) 6/9 SKN 11-APL-600.18.doc We venture to add a further reason in support. Since Section 397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 CrPC only to petty interlocutory orders! A situation wholly unwarranted and undesirable.” 10. The Hon’ble Supreme Court has held that the jurisdiction of the High Court under section 482 of Cr.P.C. cannot be barred solely on the ground that the revisional jurisdiction could also be availed of. The restraint exercised is a self imposed restraint. This Court will have to look into the circumstances while entertaining the present Application. The present case is of the year 2018 and has been pending since then. This Court has entertained the matter and issued Rule. Further the peculiar facts of the present case make out an exceptional case to entertain the present Petition. The powers under section 482 of Cr.P.C. are used to prevent the abuse of the process of law and to secure the ends of justice. 11. Perusal of Form-32 annexed to the Application indicates that, the Applicants were appointed as Non-executive Directors of accused No.1 with effect from 30th September 2010. The Applicants were not connected with accused No.1- Company when the purported discussion took place or the cargo was transported. The Applicants, therefore, could not have offered any inducement whatsoever. Further the complaint indicates that, agreement was entered between accused No.1 and Respondent No.2 No specific role is attributed to the present Applicants nor even the act of 7/9 SKN 11-APL-600.18.doc dishonest inducement is attributed to the present Applicants. The allegations in the complaint are general, vague and against all the Directors of accused No.1. The Applicants are made accused without verification of basic facts. Perusal of the police report would indicate that cargo/ material was transported by Respondent No.2 on behalf of accused No.1 between the period from 23rd July 2010 to August 2010, when the Applicants were not the Directors of accused No.1. 12. In view of the aforesaid discussion and applying the principles laid down by the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335, I am of the considered opinion that the present case squarely falls within the parameters enunciated therein. Allowing the prosecution to continue for the alleged offence punishable under Section 420 read with Section 34 of the IPC would result in an abuse of the process of the Court, particularly when the allegations, viewed in their entirety, do not disclose the commission of the alleged offences and the dispute is essentially civil in nature. 13. Prima facie, I am of the view that the Applicants were not the Directors of accused No.1 nor were concerned or connected with accused No.1 when the alleged transactions had taken place. In that view of the matter offence of cheating is not made out from the complaint. In my opinion, the Applicants have made out a case for exercising inherent 8/9 SKN 11-APL-600.18.doc jurisdiction under section 482 of Cr.P.C. Considering the fact that the Applicants were not even the Directors of accused No.1 when the purported alleged transactions were taken place, it would be a fit case to exercise jurisdiction under section 482 of Cr.P.C. to prevent the abuse of process of law. 14. In view of the above, I am inclined to allow this Application. Accordingly, Criminal Application is allowed. Rule is made absolute in terms of prayer clause (a). (RANJITSINHA RAJA BHONSALE, J.) 9/9