TARUN JUNJHUNWALA AND ANRversusTHE STATE OF MAHARASHTRA

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         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.
                    _______________________________


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                   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 71 st 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 5 th May 2016, directed

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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 31 st 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 4 th

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 18 th September 2018. On

28th October 2021, learned Advocate for Respondent No.2 had appeared.

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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

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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)

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       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)

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        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


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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

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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.)




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