1. The petitioners in this case pray for quashing their prosecution, started on the basis of a complaint lodged by the opposite party, under S. 420 of the Indian Penal Code. The complainant-opposite party, Bachheraj Dugar, Managing-Director, Merchants' Multi-Purpose Co-operative Society Ltd., Tezpur, filed the complaint on 15-3-57, and on receipt of the same, the learned Sub-Divisional Magistrate issued bailable warrant of arrest against the petitioners for then prosecution under the above section. The main contention of Mr. Ghose, in support of the application, is that the complainant, on the face of it, does not disclose any criminal offence. If that is so, then obviously the prosecution of the petitioners could not be sustained and would amount to an abuse of the processes of the Court. If, on the other hand, the complaint does disclose an offence against the petitioners, then this Court would be reluctant to interfere at this stage and quash the prosecution started against them. The relevant portion of the complaint may be reproduced thus:—

“That the complainant is the Managing-Director of Merchants' Multi-Purpose Co-operative Society, Tezpur and order was placed on behalf of the said Society to Swadeshi Sugar Suppliers, Agent of Bishnu Sugar Mills, for supply of 4 wagons of D. 29 grade sugar of that Mill. Witness No. 1, the Agent of the aforesaid Swadeshi Sugar Suppliers, took order of the said sugar from the complainant at Tezpur. Accordingly, the said Bishnu Sugar Mills Ltd., by R.R Nos. 9/638272 dated 10-2-57, 10/638273 dated 11-2-57, 11/638274 dated 11-2-57, and 12/638276 dated 11-2-57, sent 4 wagons of sugar.

2. The R.Rs were sent through the State Bank of India, Tezpur Branch. The complainant, on payment of Rs. 33,466-4-0, along with the Bank's commission, took delivery of the R.Rs, and went to the railway station. The sugar, as sent by the accused, was found to be far inferior to the ordered sugar, i.e, D. 29 grade, and it may be termed as ‘dust of sugar’. This sugar is not favoured in Assam market and generally it is not sold in Assam. Accused No. 1, in the bills sent along with the goods, mentioned those as D. 29 grade and charged Rs. 27-10-0 per maund. But the goods which they have sent, cannot be valued at more than Rs. 20 per maund. Both the accused, in collaboration, with the purpose of gaining profit, sent sugar other than ordered for, and charged the rate of better quality of sugar. They have thus cheated the complainant by supplying inferior quality of sugar and charging higher rate meant for good quality of sugar.”

3. The gravamen of the charge against the petitioners is that although the agreement was to supply D. 29 grade sugar, the actual supply made was of ‘dust of sugar’; and Joysing Rajput, accused No. 1, Manager of Bishnu Sugar Mills, Ltd., District Saran, in the bills sent along with the goods, mentioned it as D. 29 grade and charged as such at the higher rate per maund, as indicated therein, though the goods were very inferior in quality.

4. It is further alleged that the other accused, Radheshyam Bhagat, Director of Swadeshi Sugar Suppliers Ltd., of Calcutta, also collaborated with accused No. 1, with a view to make, illegal profit in making the supply of sugar much inferior to the quality ordered, and realising from the complainant the higher price of a better quality sugar of D. 29 grade. According to the complainant, all this was deliberately done by the accused, for their unlawful gain and, as such, constituted a criminal offence.

5. Mr. Ghose contends that although the facts alleged may constitute a civil liability, there is nothing to indicate that there was any mens rea on the part of the petitioners in making the supply, or that they deliberately did so with a view to gain any illegal profit. Prima facie, the contention does not appear to be sound. The question whether there was actually mens rea or not, would depend upon the evidence to be led in the case; but on the facts as they appear in the said petition, it cannot be said definitely that the existence of mens rea was entirely excluded.

6. The illegal intention, as alleged in the complaint petition, may be involved in making the supply of an inferior quality of sugar, knowing that it was so, and in still presenting a bill for payment of the price of a better and higher quality of sugar, namely, D. 29 grade, which was the sugar for which the order had been placed.

7. The learned counsel relies on a decision of this Court in Hiralal Patni v. Chowthmal Sharma, AIR 1950 Assam 202 (A). It is argued that the facts in that case were very much similar to the allegations made in the present case and, therefore, no prosecution should be started against the petitioners. It was further observed in that case that parties should not be encouraged to resort to criminal Courts in cases in which the points at issue between them are such that they could be more properly decided by a civil Court, and that any tendency on the part of litigants to take recourse to a short cut by instituting a complaint, where a suit is the proper remedy, should be discouraged by the criminal Courts.

8. It should be, however, observed that the decision in the case largely rested upon the concession made by the learned counsel appearing on behalf of the complainant who conceded that nothing stated in the various paragraphs of the complaint constituted an offence. The learned counsel mainly relied upon certain statements made in one of the paragraphs of the complaint petition, to indicate that the accused in the case deliberately supplied a false trade description to the bundles of grey yarn; whereas the contract was for the sale of yarn of ten counts tensile strength, the yarn actually delivered, when tested, was discovered to be of an average seven tensile-strength, and thereby the accused cheated the complainant firm by obtaining from them a price for the yarn delivered, to which they were not entitled.

9. In the facts of that case, the learned Judges did not accept the position that any definite case of intention to cheat had been made out on the face of the complaint petition, and they referred to various factors which arose on the complaint petition itself and which, in their opinion, demolished the assertion of the existence of any criminal intention.

10. They were, however, more impressed with the consideration, in deciding that case, that a criminal Court should not be invited to decide questions which may be of a complicated nature and which a civil Court was best suited to decide; and it was thought that if the complaint in the case in question were to be investigated by a Magistrate, he would have to decide such complicated questions as the formation of the disputed contract, including the parties thereto, the terms of the contract, its breach, whether the alleged breach of the terms as to countage amounted to a breach of the contract or a breach of warranty, and other allied questions.

11. The other learned Judge who wrote a separate judgment, was also of the view that there was no allegation contained in the complaint or in the statement of the complainant that the accused had personally entered into the contract or that they had any criminal intent to cheat or defraud at that time. They were proceeded against merely because they happened to be the Managing Agents, but the acts attributed to the accused were not stated to be their personal acts, and a direct statement that the accused in that case were personally liable for applying false marks, was avoided. In those circumstances, the learned judges held that no useful purpose would be served by allowing the prosecution to continue, and accordingly quashed the proceeding.

12. I am, therefore, unable to accept the position that the case on which Mr. Ghose relies, is any authority for the proposition that in the present case also the complaint does not disclose an offence of a criminal nature. In a subsequent Full Bench decision of this Court, it was held that if the complaint disclosed an offence, the High Court would not interfere in the exercise of its revisional jurisdiction and quash the proceedings. It is not necessary for me to question at this stage the soundness of some of the other observations made in the earlier judgment referred to by me, about the propriety of the criminal Courts taking cognisance of an offence, where the matter could be more satisfactorily investigated by a competent civil Court. This principle does not appear to have found favour with the Supreme Court.

13. In M.S Sheriff v. State of Madras, (S) AIR 1954 SC 397 (B), it was held that as between the civil and the criminal proceedings, the criminal matters should be given precedence, though no hard and fast rule could be laid down therefor, but the possibility of conflicting decisions in the civil and the criminal Courts was not a relevant consideration. Public interests demand that criminal justice should be swift and sure that the guilty should be punished while the events are still fresh in the public mind, and that the innocent should be absolved as early as is consistent with a fair and impartial trial; and, in the facts of that case, their Lordships thought that the simultaneous prosecution of the criminal proceedings and the civil suits would embarrass the accused, and that the civil suits should be stayed till the criminal proceedings were finished.

14. It is obvious, therefore, that the same facts might give rise both to civil and criminal liability, and there is nothing in law to prevent the criminal Courts from taking cognisance of an offence, provided the elements of an offence were made out on the face of the complaint petition itself, merely because, on the same facts, the persons concerned might be also subjected to civil liability. This position was also recognised by the Supreme Court in Jaswantrai Manilal Akhaney v. State Of Bombay, (S) AIR 1956 SC 575 (C), where it was held that the same set of facts might give rise both to a civil liability and a criminal prosecution.

15. It is, however, true that the question of mens rea is very important, and if ultimately no mens rea is found to have been established by the prosecution, then the accused would be entitled to the benefit thereof, whatever their liability may be, so far as damages were concerned on account of breach of contract or breach of agreement. In the present case, I am at this stage unable to entertain the contention of Mr. Ghose that the facts stated in the complaint petition per sc do not disclose an offence as contemplated by S. 420 of the Indian Penal Code.

16. Mr. Ghose next contends that, in any case, the learned District Magistrate was in error in transferring the case to his own file merely because the Sub-Divisional Magistrate, before whom the case was pending trial, took an erroneous view of S. 205 of the Code of Criminal Procedure. Indeed he goes further and argues that the view taken by the Sub-Divisional Magistrate of that section was perfectly justified and supported, according to him, by a decision of this Court in Mt. Kamal Debi v. Pannalal, AIR 1952 Assam 161 (D), where the learned Judges pointed out that S. 205, Cr. P.C, did not deal with the jurisdiction of a Magistrate to dispense with the personal attendance of an accused person after a summons or warrant had been served on the accused.

17. The section merely gave a discretion to the Magistrate, at the time of issuing summoas, as to whether the accused should appear in person or should be permitted to appear through a pleader, and did not preclude the Court from considering the request of an accused to appear through a pleader, merely because in the first instance a warrant had been issued. In this case, apparently what was done was that although a warrant had been issued for the personal attendance of the accused, the Court in the meanwhile accepted an application on behalf of the Agent of the accused, allowing them not to appear in person but to be represented through their pleader; and the learned Magistrate did so on the assumption that the warrant of arrest issued against the accused could be treated as a summons.

18. The learned District Magistrate objected to this procedure. In my opinion, he was right in pointing out that the learned Sub-Divisional Magistrate could not treat the warrants issued against the accused as summonses. The position would have been different if the accused had appeared in pursuance of the warrants and then made an application to be represented by a pleader. In that case, it was certainly open to the Sub-Divisional Magistrate to dispense with their personal attendance and to allow them to be so represented under S. 205, Cr. P.C

19. But even assuming, for the sake of argument, that the learned District Magistrate did not take a correct view of the law, that is no reason why I should interfere with the order passed by him transferring the case to his own file, which he had complete jurisdiction to do. For the above reasons, the application fails and is dismissed. The Rule is discharged.

M.K.S

20. Application dismissed.