Legal Question in Criminal Law in India

Sir, I need your urgent advice and would truly appreciate if you
could spare a few minutes for me.
A matter is being heard in the High Court for quashing of a complaint.
Brief facts are as follows:
The complaint is an old dispute pertaining to year 2005 for sale and
purchase of machinery. The seller not only failed to commission the
machinery but also failed supply all spares, manuals, etc causing the
buyer (us) to with-hold 20% of the contract amount.
This with-held amount equals to the retention amount and amount of
performance bank guarantee as per the agreement between the buyer and
seller.
The seller has neither sent any notices nor demand for the with-held amount since 2005.
The seller after over two years in 2008 files a private complaint
u/s 420 IPC and also an application u/s 156(3) CrPC for Police to
investigate the matter. In effect, the police machinery was utilised
to pressurise the buyer into paying the disputed amount to the buyer.
The buyer filed in the High Court for quashing of the FIR and Challan
filed by the Police in the lower courts u/s 482 CrPC, as this is a
purely civil dispute over a breach of contract.
This matter meets the criteria set by the Apex Court in the Bhajanlal
case and also in the more recent Som Mittal case.
The matter was admitted and stay granted for proceedings in the lower court.
Our strategy was simple. Either the High Court quashes the matter or we appeal in the Supreme Court. (This is the level of confidence we have based on previous Apex Court rulings and the law itself)
However, during Final hearing, the Hon'ble Judge at high court passed an order, stating that it is at the request of advocate of the petitioner (buyer), the petitioner will make an application within 3 days to issue notice to the Seller (who is not a party to the case as he choose to let the State handle the matter by filing an application u/s 156(3) CrPC.)
Sir, issue of notice to the seller will further give him opportunity to confuse the matter with the sole objective of it being remanded to the lower court where he can have ample opportunity to play mischief.
Our query is what are our options and course of action in this case?
If we not issue notice (but can that be taken as contempt of court?) and on the next date plead before the Judge that the seller relinquished his rights to be heard when he gave the matter over to the police. Hence, his say is not required.
Moreover, our pleading are totally based on the submissions of the seller, where prima-facie no case u/s 420 is being made out, hence calling the seller now will again lead mis-carriage of justice.
Our counsel says that now we cannot even take this case to the supreme court. No explanations given? What are our options in this case?
I most sincerely appreciate you advice.
Kind regards

Asked on 8/04/09, 2:08 pm

4 Answers from Attorneys

RAJIV GUPTA (Cell: +91 9811284735) [email protected]

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why are you afraid of making the seller a party to your petition and summoning him. let him also come and defend the petition filed by you along with state. generally in such cases, the informant is also summoned along with state. i do not understand that what is your fear. the seller has to be file the reply to the petition as he would like to object the order of quashing as it directly interferes with his complaint. moreover, the police is only an agency involved with handling the case and it is the informant who would have to prove his case by deposing before the court and also by producing witnesses.

there is no illegality in court order and the informant/seller should be summoned and after hearing him out, the court would decide whether to quash the complaint or not.

Answered on 8/04/09, 2:16 pm

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Sudershan Goel India Law Offices of Sudershan Goel - Advocate

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The seller, being the complainant, has been rightly given notice by the high court; prima facie the case is not fit for quashing; you should consider an amicable out of court settlement.

Answered on 8/04/09, 7:50 pm

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Shrichand Nahar S.V.Nahar, Advocate

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Original Complainant would be entitled to be heard. More so, when in your petition you must have criticized and assailed his complaint, conduct etc.

For quashing or discharge, basic requirement is that no prima facie case is made out or essential ingredients of the offence alleged are not present even if allegations are taken to be true.

Answered on 8/05/09, 12:31 am

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