# Jong Seuk Park President Korea Marine Transport Company Ltd v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-13
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 24529 of 2015
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jong-seuk-park-president-korea-marine-transport-company-ltd-v-state-of-u-p-anr-44926
- **Pages:** 23

## Headnote

A. Criminal Law - Indian Penal Code
1860- Section 406/420-Cr.P.C, 1973-
Section 468- The transporter cannot be
4 All. Jong Suek Park President Korea Marine Transport Company Ltd. Vs. State of U.P. & Anr. 155
absolved of his liability if any item of the
consignment is found lost/missing and
would be jointly liable for the said loss
with other co-accused involved in its
transportation as well as in loading.- At
the time when the consignment was
loaded, the applicant was present and his
seal was also affixed, which would be
treated to be nothing but an entrustment
of the consignment - Civil disputes or
commercial
disputes,
in
certain
circumstances,
may
also
contain
ingredients
of
criminal
offences
-
Notwithstanding that the dispute is of
civil nature, such a dispute may have to
be entertained on the criminal side -
Section 468 Cr. P.C. - Since the accused
has been summoned to face trial under
Sections 406 and 420 IPC, same is
punishable with imprisonment up to 7
years and fine, therefore the bar of 3
years would not be applicable in the
present matter - Whether there was
intention to cheat or not on the part of
the
applicant
and
other
co-accused
cannot be seen at this stage - The aspect
of non-impleadment of the company, of
which the accused applicant is stated to
be president can be seen by the trial court
at the stage of trial and the provision of
Section 319 Cr. P.C. may be invoked, if so
required, in order to implead the company
of the accused applicant as well. But
solely on the count of non-impleadment
of the company,the prosecution of the
accused cannot be quashed.

Criminal Application rejected. ( Para
13,14,15,24,25,26)

Case Law cited/ discussed:-

1.M/s. Indian Oil Corp. Vs. M/s NEPC India
Ltd. & Ors., 2006 (6) SCC 736

2.Harishchandra Prasad Mani & Ors Vs. St. of
Jhar. & anr, 2007 (15) SCC 494.

3.Hira Lal & Ors. Vs. St. of U.P. & Ors. Crl.
Appeal No.662 of 20.

4.Arun Bhandari Vs. St. of U.P. & ors, 2013 (2)
SCC 801.
5.Anil Kohli Vs. State (NCT of Delhi), 95 (2002)
DLT 173.

6.M/s. Zandu Pharma. works Vs. Md. Sharaful
Haque & Anr.,2005 (1) SCC122

7.R. Kalyani Vs. Janak C. Mehta & Ors.2009(1)
SCC 516

8.Maksud Saiyed Vs. State of Guj. & Ors. 2008
(5) SCCSCC 668.

9.S.K. Alagh Vs. St. of U.P. & Ors., 2008 (5)
SCC 662.

10.State of Har. & ors. Vs. Ch. Bhajan Lal &
ors, 1992 Suppl. (1) SCC 335.

11.Madhavrao Jiwahirao Scindia & ors. Vs.
Sambhajirao Chandrajirao Angre & ors, (1988)
1 SCC 692.

12.St. of Kar. Vs. L.Muniswamy & ors (1977) 2
SCC 699.

13.Application U/S 482 No.-12977 of 2018,
Usher Agro Ltd. Vs State of U.P. and Another
decided on 09.07.2018. ( Relied upon)

## Text

_Characters 0–39,883 of 79,459. This is a partial read: ask again with offset=39883 for what follows._

154 INDIAN LAW REPORTS ALLAHABAD SERIES
passing the order which was said to be
substratum giving rise to the various
offences was an act done while discharging
the official duty and if the duty was not
rightly performed, such an act would be in
dereliction of the official duty. The
impugned conduct of the accused in Anil
Kumar's case (supra) is so inextricably
intertwined with his official duty that the
same has to be termed either in excess or in
dereliction of the same. It was in the
particular background of this factual matrix
that the need of the sanction was approved
but as it has already been noted that so far
as the facts of the present case under
consideration is concerned, the allegations
are relating to a conduct quite independent
of any official act. Whether the allegations
are true or false is a different question and
which can only be discerned through a
legitimate investigation only.

9. At any rate in the considered
opinion of the Court the allegations made in
the present application filed under Section
156 (3) Cr.P.C., which on the face of it do
constitute cognizable offences, need a fair
investigation in order to ascertain the truth
and arrive at a just conclusion. The
Magistrate has certainly committed error
while he rejected the application moved
under section 156(3) Cr.P.C.

10. In view of the above discussion,
the impugned order cannot be sustained
and the same deserves its quashing.
Accordingly
the
application
stands
allowed and the impugned order dated
27.5.2019 stands quashed.

11. The matter is remanded back to
the court below concerned for passing
fresh orders in accordance with law
keeping in view the observations made
hereinabove.

12. In the last it may also be
observed that as the accusations have
been made against police personnel
therefore it shall be in the fitness of the
things that the S.S.P. concerned should
appoint an officer of the higher rank,
being an officer not below the rank of
Deputy Superintendent of Police to
investigate the case under his own
supervision. The court below is therefore
directed to communicate this direction to
the S.S.P. concerned after passing fresh
orders in the matter.

13. Office is also directed to
communicate this order by fastest mode
available both to the concerned court
below and to the S.S.P. concerned.
----------

(2019)12 ILR A154

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
24529 of 2015

Jong Seuk Park President Korea Marine
Transport Company Ltd. ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anand Mohan Pandey, Sri Pankaj
Jaiswal, Sri Varun Shankar Dwivedi

Counsel for the Opposite Party:
A.G.A., Sri Deepak Agarwal, Sri Shiv
Sagar Singh

A. Criminal Law - Indian Penal Code
1860- Section 406/420-Cr.P.C, 1973-
Section 468- The transporter cannot be
4 All. Jong Suek Park President Korea Marine Transport Company Ltd. Vs. State of U.P. & Anr. 155
absolved of his liability if any item of the
consignment is found lost/missing and
would be jointly liable for the said loss
with other co-accused involved in its
transportation as well as in loading.- At
the time when the consignment was
loaded, the applicant was present and his
seal was also affixed, which would be
treated to be nothing but an entrustment
of the consignment - Civil disputes or
commercial
disputes,
in
certain
circumstances,
may
also
contain
ingredients
of
criminal
offences
-
Notwithstanding that the dispute is of
civil nature, such a dispute may have to
be entertained on the criminal side -
Section 468 Cr. P.C. - Since the accused
has been summoned to face trial under
Sections 406 and 420 IPC, same is
punishable with imprisonment up to 7
years and fine, therefore the bar of 3
years would not be applicable in the
present matter - Whether there was
intention to cheat or not on the part of
the
applicant
and
other
co-accused
cannot be seen at this stage - The aspect
of non-impleadment of the company, of
which the accused applicant is stated to
be president can be seen by the trial court
at the stage of trial and the provision of
Section 319 Cr. P.C. may be invoked, if so
required, in order to implead the company
of the accused applicant as well. But
solely on the count of non-impleadment
of the company,the prosecution of the
accused cannot be quashed.

Criminal Application rejected. ( Para
13,14,15,24,25,26)

Case Law cited/ discussed:-

1.M/s. Indian Oil Corp. Vs. M/s NEPC India
Ltd. & Ors., 2006 (6) SCC 736

2.Harishchandra Prasad Mani & Ors Vs. St. of
Jhar. & anr, 2007 (15) SCC 494.

3.Hira Lal & Ors. Vs. St. of U.P. & Ors. Crl.
Appeal No.662 of 20.

4.Arun Bhandari Vs. St. of U.P. & ors, 2013 (2)
SCC 801.
5.Anil Kohli Vs. State (NCT of Delhi), 95 (2002)
DLT 173.

6.M/s. Zandu Pharma. works Vs. Md. Sharaful
Haque & Anr.,2005 (1) SCC122

7.R. Kalyani Vs. Janak C. Mehta & Ors.2009(1)
SCC 516

8.Maksud Saiyed Vs. State of Guj. & Ors. 2008
(5) SCCSCC 668.

9.S.K. Alagh Vs. St. of U.P. & Ors., 2008 (5)
SCC 662.

10.State of Har. & ors. Vs. Ch. Bhajan Lal &
ors, 1992 Suppl. (1) SCC 335.

11.Madhavrao Jiwahirao Scindia & ors. Vs.
Sambhajirao Chandrajirao Angre & ors, (1988)
1 SCC 692.

12.St. of Kar. Vs. L.Muniswamy & ors (1977) 2
SCC 699.

13.Application U/S 482 No.-12977 of 2018,
Usher Agro Ltd. Vs State of U.P. and Another
decided on 09.07.2018. ( Relied upon)

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri Pankaj Jaiswal learned
counsel for the applicant, Sri Shiv Sagar
Singh, learned counsel for opposite party
no.2 Sri Attreya Dutt Mishra, learned
A.G.A. appearing for the State and
perused the record.

2. This application under Section
482 Cr.P.C has been moved with a prayer
to quash the entire criminal proceedings
of the complaint case no.4182 of 2014
(G.K. Traders vs. Sudhir Kumar Shukla
and others) under sections 406, 420 IPC,
Police Station Fazalganj, District Kanpur
Nagar and the summoning order dated
20.02.2015 passed by Additional Chief
Metropolitan
Magistrate
8th
Kanpur
156 INDIAN LAW REPORTS ALLAHABAD SERIES
Nagar and also a prayer is made to stay
the proceedings in this case till the
disposal of this application.

3. Learned counsel for the applicant
has mainly argued that the offences,
which have been mentioned above, had
been constituted against the accusedapplicant because the material had only
been transported in the ship of the
applicant, which was about 23 metric tons
of copper scrap. No entrustment of the
said property was made to him. The
matter is of civil nature. The opposite
party no. 2 has also filed a claim petition
for making good the loss of the goods.
Further it was argued that the proceedings
are barred by section 468 Cr.P.C. In
criminal case no vicarious liability can be
imposed against the accused applicant.
The applicant was not Indian national. On
the date of occurrence, the company of
the applicant was not registered in India
and even the address of the company of
the applicant is shown wrong. The
opposite party no. 2 has not made the
company of the applicant as a party in this
case but has only made the President of
the said company to be an accused, which
is illegal. Attention was drawn to page 24
of the paper book, which indicates that the
same was bill of lading. The goods to be
transported were in a sealed container,
hence the applicant had no knowledge as
to what was kept in them. On 26.9.2009
the ship had moved and had reached its
destination on 29.9.2009 and on that date
the opposite party no. 2 had gone for
collecting the consignment then he came
to know that the copper, which was
transported, was missing. The complaint
has been filed about five years after the
occurrence, hence the same is barred by
provision of section 468 Cr.P.C. The
crime was not committed in India rather
the same was committed in the ship. The
jurisdiction of Kanpur Nagar has been
falsely made in the present case and
accordingly it is prayed that the criminal
proceedings against the applicant need to
be quashed. It was also argued that the
bill of lading would indicate that the
responsibility
of
the
applicant
was
confined only upto custom yard to custom
yard, which is indicated in the said bill.
Therefore, if any of the goods were found
less in weight, number and quantity after
it had gone out of the custom yard, the
accused-applicant cannot be treated to be
responsible for the same. When a question
was put to the learned counsel for the
applicant as to how he was representing
the applicant, who is stated to be foreign
national, he replied that vakalatnama was
got signed and obtained through courier
from abroad. He has also relied upon the
following case laws:

i). M/s. Indian Oil Corporation
vs. M/s NEPC India Ltd. & Ors., Appeal
(Crl.) No.834 of 2002.

ii). Harishchandra Prsad Mani &
others vs. State of Jharkhand & another,
Appeal (Crl.) No.124 of 2007.

iii). Hira Lal & Ors. vs. State of
U.P. & Ors. Crl. Appeal No.662 of 2009.

iv) Arun Bhandari vs. State of
U.P. and others, Crl. Appeal No.78 of
2013.

v). Anil Kohli vs. State (NCT of
Delhi), 95 (2002) DLT 173.

(vi). M/s. Zandu Pharmaceutical
works vs. Md. Sharaful Haque & Anr.,
Appeal (Crl.) No.1241 of 2004.

(vii).R. Kalyani vs. Janak C.
Mehta & Ors. Crl. Appeal No.1694 of
2008.

(viii).Maksud Saiyed vs. State
of Gujarat & Ors. Appeal (Crl.) No.1248
of 2007.
4 All. Jong Suek Park President Korea Marine Transport Company Ltd. Vs. State of U.P. & Anr. 157

(ix). S.K. Alagh vs. State of
U.P. & Ors., Appeal (Crl.) 317 of 2008.

4. On the other hand, learned
counsel for the opposite party no. 2 has
vehemently argued that the goods were
sealed in the presence of the accusedapplicant and number of seal was
mentioned as KMB121561 and when the
same was received by the opposite party
no. 2, the same was found less in
quantity/weight. In the present case along
with civil liability, it cannot be said that
the criminal liability is not made out.
There is direct role of the accusedapplicant and hence the company was not
required to be impleaded as it had no role.
It is further argued that the case is not
time barred because the offence in which
the accused-applicant has been summoned
also comprised the offence under section
420 IPC which is punishable for seven
years imprisonment, hence it would not
be treated to be barred under section 468
Cr.P.C. The goods were to be carried to
Kanpur Nagar, hence jurisdiction of
Kanpur Nagar would be made out in the
present case.

5. In order to appreciate the
controversy involved in the present case,
it would be appropriate to refer in brief
the facts of the case, which are as follows.

6. The complaint was made by the
opposite party no. 2 i.e. M/s G.K. Traders
through its Proprietor Gopi Krishan Gupta
against the accused-applicant (accused no.
3) in the said complaint and two others
namely, Sudhir Shukla and Saham
Siddiqui alleging therein that the firm of
the complainant deals in wholesale
business of scrap. The co-accused Sudhir
Shukla was Computer Operator in the said
firm, who used to deal in communication
and business letters in respect of the sale
and purchase of scrap on behalf of firm
with other traders. The other co-accused
Saham Siddiqui was friend of the coaccused Sudhir Shukla who used to come
to meet him in the office. The co-accused
Saham Siddiqui is expert in establishing
contact in foreign countries with respect
to business of scrap and he had inspired
the complainant that if he begins the
business of scrap with the company of
accused-applicant namely K.M.T.C. Ship
Company, he would earn huge profits.
The said company does transportation
work in entire world by reaching goods
from one country to another and the said
company was also registered in India
having its office at Mumbai. Since the
said company of the accused-applicant
was registered in India, proceedings under
section 188 (B) Cr.P.C against it can be
drawn. The co-accused Sudhir Shukla and
Saham Siddiqui in collusion with each
other gave proposal to the opposite party
no. 2 to purchase copper scrap from the
First International Company Ltd., Seoul,
Korea whose owner was Jeson Kim, who
had copper scrap in large quantity. The
co-accused Saham Siddiqui had sent email in this regard to the complainant
believing which, he gave consent for the
said business and on 22.07.2009 coaccused Sudhir Shukla has sent e-mail to
Jeson Kim indicating therein that the
complainant wanted 99.9% pure copper
and offered him 3500/- US$ per ton, on
which it was agreed that at the rate of
3600/-US$ per ton copper scrap would be
purchased from Manila Philippines and its
sale contract was sent through e-mail in
which the terms and conditions were
stipulated that not less than 100 metric
tons material would be purchased and that
of the total material, 20% amount would
have to be deposited in the account of
158 INDIAN LAW REPORTS ALLAHABAD SERIES
Jeson Kim. Thus, the co-accused Sudhir
Shukla and Saham Siddiqui after having
taken the complainant into confidence,
reached
Manila
on
25.8.2009
and
inspected the copper on 27.8.2009 and
sent photograph through
e-mail
on
28.8.2009. The contract for sale of 20
metric tons was agreed upon and 20%
amount i.e. 14400/- US$ were to be
deposited in the bank of Korea and
Rs.30,000/- was to be spent as other
expenditure, which were requested to be
sent by the opposite party no.2. The
opposite
party
no.2/complainant
accordingly deposited 14400/- US$ on
31.8.2009 as per terms and conditions.
The co-accused Sudhir Shukla and Saham
Siddiqui gave 600/- US$ on 4.9.2009 and
900/- US$ on 20.9.2009 to Jeson Kim in
cash, which were sent by the firm of the
complainant and remaining amount i.e.
80% of the copper scrap was also paid by
way of advance to Jeson Kim. Thereafter,
the copper scrap was loaded in the
containers in the presence of co-accused
Sudhir Shukla and Saham Siddiqui, the
weight of which was found to be 23
metric tons, hence the total amount of the
said 23 metric tons copper scrap came to
be of 84300/- US$ out of which, 14400/-
US$ on 31.8.2009 and 1500/- US$
according to the terms and conditions of
paragraph nos. 10 and 11 and remaining
6800/- US$ were deposited in the account
of Jeson Kim on 19.9.2009. Thus, the
whole price of the copper scrap was paid
by the complainant where-after the coaccused
Sudhir
Shukla
and
Saham
Siddiqui had loaded the said scrap in
containers and sealed & packed them. The
applicant-accused had also affixed his
seal on the said copper being seal no.
KMP1212651 and thereafter the container
of the copper scrap which was loaded in
the ship of the accused-applicant was
handed over to be reached at Kanpur
address. On 26.9.2009 the copper container
reached Mumbai and then the accusedapplicant along with other co-accused told
the opposite party no. 2 to get the delivery
from Mumbai because if the said container
was allowed to be kept there, hourly charges
would have to be paid. In pursuance of that,
the representative of the opposite party no. 2
namely, Sachin Gupta reached Mumbai and
after having paid custom duty assessed on
the weight of the container, bill of which is
article-14, on weighing the said material, in
place of 23 metric tons copper, the same
turned out to be 6 metric tons. At this, on
3.11.2009 in the presence of representative of
the accused-applicant, Insurance Surveyor,
Custom Officer and the representative of the
opposite party no. 2, seal of container was
opened, out of which, in place of 23 metric
tons copper scrap, only four bags of rubbish
were taken out. Therefore, the accusedapplicant along with other co-accused had
caused loss to the complainant/opposite party
no. 2 of having swindled of 84300/ US$,
which would be equivalent to Rs.41,30,000/-
in Indian currency. Apart from this,
expenditure incurred by the accusedapplicant nos. 1 and 2 Sudhir Shukla and
Saham Siddiqui in having gone to Manila
and their stay in hotel etc. was also to be
borne by the opposite party no. 2 in addition
to the rent of shipping company. Thus, over
and above, the loss of Rs.10.00 lacs was also
caused to the complainant. The opposite
party no. 2 made various trips to Mumbai
and Kanpur Nagar in order to get the copper
scrap
and
also
continued
to
make
correspondence with the accused persons,
therefore, delay had occurred in filing the
complaint, which was not deliberate, hence
the complaint is not time barred.

7. On this complaint, statement of
opposite party no. 2 was recorded under
4 All. Jong Suek Park President Korea Marine Transport Company Ltd. Vs. State of U.P. & Anr. 159
section 200 Cr.P.C on 2.8.2014 in which
he has repeated the same version which
has been given in the complaint and
witness Sachin Gupta son of Gopi
Krishan Gupta has also been examined as
PW1 under section 202 Cr.P.C. and Ravi
Gupta son of Gopi Krishan Gupta as PW2
under section 202 Cr.P.C. Both these
witnesses have also narrated the same
version which has been given in the FIR.
Devendra Singh son of Hira Lal Singh has
been examined as PW3 and after having
considered the entire evidence, the trial
court
has
passed
the
impugned
summoning
order
dated
20.2.2015
whereby the accused-applicants along
with other co-accused Sudhir Sharma and
Saham Siddiqui have been summoned to
face trial under section 406 and 420 IPC.

8. An affidavit in support of the
application has been filed from the side of
the applicant and it has been mentioned
that there is a Shipping Company in the
name
and
style
of
Korea
Marine
Transport Company Ltd. (KMTC) which
is registered in South Korea having its
registered office at 15th Floor, Hanjin
Building 118 2-GA Nem Daem Un-Ro
Jung-Gu Seoul Korea which is one of the
leading line in South Korea offering total
transportation since last 58 years, of
which the applicant is President and a
foreigner having citizenship of South
Korea. The applicant has authorized Mr.
Sridhan Subramaniam, General Manager,
(deponent) since 2013 to look after the
case in India and to file the present
application. Copy of the authority letter
issued in his favour is Annexure-1 to the
affidavit.
On
14.9.2009,
the
complainant/opposite party no. 2 through
his shipper had booked his consignment
with KMTC and during that period
KMTC Lines agents in Nhava Sheva,
Mumbai were Sea Horse Ship Agency
Pvt. Ltd. who were to be approached for
delivery of consignment at Nhava Sheva,
Mumbai. Copy of the bill of lading is
annexed as Annexure-2 to the Affidavit.
On 26.9.2009 complainant's consignment
had reached Nhava Sheva, Mumbai. On
the same day it had gone to the custom
bounded area in the Yard of Continental
Warehousing Corporation (Nhava Sheva
Mumbai) Pvt. Ltd. and as per report dated
29.9.2009
of
the
said
Continental
Warehousing Corporation (Nhava Sheva
Mumbai) Pvt. Ltd, the consignment was
delivered to Continental Warehousing
Corporation (Nhava Sheva Mumbai) Pvt.
Ltd. with normal wear and tear. Copy of
the report of Continental Warehousing
Corporation dated 29.9.2009 is annexed
Annexure-3. As per bill of lading dated
14.9.2009 the consignment was loaded,
counted and sealed by shipper at the
shipper's place in Manila. Once the
consignment is unloaded from ship/carrier
and the same was handed over to the
custom bounded area then the carrier
would stand released from all his liability.
The complainant/opposite party no. 2 has
filed his bill of entry with the custom on
23.10.2009
and
thereafter
the
consignment was examined and after
weighing the consignment, it was found
that it was weighing only 6 metric tons.
Copy of the bill of entry dated 23.10.2009
is annexed as Annexure-4 to the affidavit.
On 3.11.2009, the said consignment was
presented for joint survey and as per
surveyor report, the said container was
found in normal wear and tear condition
due to age and use and seal was found
intact. Copy of the same is annexed as
Annexure-5. The responsibility of the
carrier ceased once, the container was
discharged with the seal in intact
condition. The complainant/opposite party
160 INDIAN LAW REPORTS ALLAHABAD SERIES
no. 2 through his counsel sent two notices
dated 21.12.2009 and 25.3.310 to the
agent of KMTC i.e. Sea Horse Ship
Agency Pvt. Ltd. which were replied by
the agent of KMTC vide replies dated
10.3.2010 and 6.5.2010. In both the
notices of complainant, it has not been
alleged that any criminal liability was
made out against the applicant which
shows that the present complaint is an
after thought with a view to coerce the
applicant. Copies of the said notices are
annexed as Annexure-6. Law laid down
by Supreme Court in State of Haryana
and others vs. Ch. Bhajan Lal and
others, 1992 Suppl. (1) SCC 335, in
Madhavrao Jiwahirao Scindia and
others vs. Sambhajirao Chandrajirao
Angre and others, (1988) 1 SCC 692,
State of Karnataka vs. L.Muniswamy
and others (1977) 2 SCC 699 are relied
upon which have also been mentioned in
the affidavit and citing them it is written
that in the light of the principles of law
laid down in these cases, no offence is
made out against the applicant in the
present
case.
Once
consignment
is
unloaded from the ship/carrier and the
same was handed over to the custom
bounded area then carrier would be
released of all his liabilities. The Indian
Carriage of Goods by Sea Act, 1925,
Article III(5) provides "The shipper shall
be deemed to have guaranteed to the
carrier the accuracy at the time of
shipment of the marks, number, quantity
and weight as furnished by him and the
shipper shall indemnify the carrier against
all loss, damage and expenses arising or
resulting from inaccuracies in such
particulars. The right of carrier to such
indemnity shall in no way limit his
responsibility and liability under the
contract of carriage to any person other
than the shipper" Article III (6) says that
unless notice, loss or damage and the
general nature of such loss, damage be
given in writing to the carrier or his agent
at the port of discharge before or at the
time of removal of the goods into the
custody of the persons entitled to delivery
thereof under the contract of carriage or if
the loss or damage be not apparent, within
3 days, such removal would be primafacie evidence of the delivery by the
carrier of the goods as described in the
bill of lading. Therefore, it is further
mentioned that in any event, the carrier
and the ship shall stand discharged from
all the liability in respect of loss or
damage unless suit is brought within one
year after delivery of the goods or the date
when the goods should have been
delivered. Article IV (2) (a) and (i)
provides that neither the carrier nor the
ship shall be responsible for loss or
damage arising or resulting from the
neglect or default of the master mariner,
pilot or the servants of the carrier in the
navigation or in the management of ship,
act or omission of the shipper or owner of
the goods, his agent or representative. The
doctrine of limitation is founded on
considerations of public policy and
expediency. The object of limitation is to
compel the litigants to be diligent in
seeking remedies in courts of law
prohibiting state claims. In commercial
dealings it is highly necessary that matters
of title and rights in general should not be
in state of constant uncertainly, doubt and
suspense. Several other citations have also
been mentioned which are not required to
be
reproduced
here.
Further
it
is
mentioned that in the business circle, to
convert purely civil dispute into criminal
case, now it is growing tendency. This is
obviously on account of a prevalent
impression that civil law remedies are
time consuming and do not adequately
4 All. Jong Suek Park President Korea Marine Transport Company Ltd. Vs. State of U.P. & Anr. 161
protect interest of the complainant. As per
section 188 Cr.P.C. Proviso
which
indicates that no such offence could be
enquired into or tried in India except with
previous
sanction
of
the
Central
Government as accused-applicant is a
person of foreign nation and also alleged
incident occurred outside India during the
voyage. The present matter is essentially
of civil nature which has been given a
cloak of criminal offence. Hence, it is
lastly prayed that the said proceedings are
liable to be quashed.

9. In rebuttal, a counter affidavit is
filed on behalf of the opposite party no. 2
Gopi
Krishan
Gupta.
It
has
been
mentioned in it that the applicant had not
mentioned the official address of the
company situated in India in authority
letter i.e. Annexure-1 of the affidavit. The
applicant had affixed its seal copper
number KMT 1212651 on the container
and in the said bill of lading the gross
weight of the container was shown 23,000
kilogram (23.000 metric tons) Copper
Millberry Scrap (99% purity of Copper).
The representative of the opposite party
no. 2 had reached Mumbai for fulfillment
and observing necessary formalities for
release of the container. As per the bill of
lading dated 14.9.2009, it was the
obligation of the applicant to deliver and
handover the consigned container to the
consignee i.e. opposite party no. 2 at
I.C.D. Kanpur, India. On weighing the
container it was only approximately 06
metric tons instead of 23.00 metric tons.
1*20 FCL container number GLDU52256399
STC
net
weight
23,000
kilogram Copper Millberry Scrap after
discharge on 26.9.2009 from M.V. "Mare
Internum" at J.N. Port Nhava Sheva was
shifted to the nominated Continental
Warehousing Corporation, CFS, Nhava
Sheva, on weighbridge inside the CFS
noted net weight 4,720 kilograms, hence
the joint survey of the said container was
made. Photocopy of the public weighing
duplicate ticket dated 28.10.2009 issued
by Continental Warehousing Corporation
Limited, Navi Mumbai is annexed as
Annexure-2.
In
pursuance
of
the
examination order dated 03.11.20009
passed by Indian Customs EDI System-
Imports (ICES/I) JNPT, Nhava Sheva
Mumbai-400 707 it is found "------ bags
found in the cabins containing with some
rusty iron bags and sand-----." After the
examination of container by the Custom
Authority the joint survey of the aforesaid
container was conducted on 03.11.2009 in
the presence of six person, namely, (i) Mr.
CRN Reddy of M/s. Scan Container
Terminals Pvt. Ltd. (Surveyor appointed
by CFS), (ii) Mr. Prashant Mathre of M/s.
Pinnacle Marine Services
(P) Ltd.,
(Surveyor appointed by Vessel Agents),
(iii) Mr. Sachin Gupta for M/s. G.K.
Traders (Consignee representative), (iv)
Mr. P.K. Sinha, Appraiser Customs, (v)
Mr. Bhaskar of M/s. Wilson Surveyors
and Adjusters Pvt. Ltd., (vi) Pankaj
Shipping and Transport Company and the
report of joint survey specifically stated
that " the seals were cut open in our
presence when found 04 nos. jumbo bags,
containing rusty iron wires and sand. All
the nuts, locking the bolts from inside the
door were sealed with a sealant. Only the
sealant of the nut locking bolts with
tampering marks of catch on door handle
retainers of the right door were found
resealed and repainted near the nut bolts."
The Scan Container Terminals in its joint
survey report dated 03.11.2009 stated that
"the seals were cut open in our presence,
then found 04 nos. jumbo bags out of 21
jumbo bags (23000 kilograms) containing
rusty iron wires and sand. All the nuts
162 INDIAN LAW REPORTS ALLAHABAD SERIES
bolts locking the bolts inside the door
were sealed with sealant. On the sealant
of the nuts locking bolts with tampering
marks on door handle retainers of the
right door were found resealant and
repaint near the nut bolts". Further it is
mentioned that joint survey report dated
04.09.2009
submitted
by
Wilson
Surveyors and Adjusters Private Limited,
Mumbai also stated that "the seals were
cut open in our presence when found only
04 nos. jumbo bags containing rusty iron
wires and sand. One bag was found with
the label marked with a Exporter name as
Proctor and Gamble Distributing Co.
Manila Philippines and an empty sachet
of Palmolive Shampoo marked as Mukati
City, Philippines in another bag. All the
''nuts' locking the bolts from inside the
door were sealed with a sealant. Only the
sealant of the nut locking bolts with
tampering marks of the catch and door
handle retainers of the right door were
found resealed and repainted near the
nut". The Pinnale Marine Services Private
Ltd. Mumbai in its joint survey report
dated 09.11.2009 stated that "the seals
were cut open in our presence when found
only 04 nos. jumbo bags containing rusty
iron wires and sand. One bag was found
with the label marked with a Exporter
name as Proctor and Gamble Distributing
Co. Manila Philippines and an empty
sachet of Palmolive Shampoo marked as
Mukati City, Philippines in another bag.
All the ''nuts' locking the bolts from inside
the door were sealed with a sealant. Only
the sealant of the nut locking bolts with
tampering marks of the catch and door
handle retainers of the right door were
found resealed and repainted near the
nut". Photocopies of these reports are
annexed as Annexures-3, 4, 5 and 6. On
the discharge of the aforesaid container on
26.9.2009 the weight of the container was
found much less than its actual weight on
which the joint survey of the aforesaid
container has been conducted and the
fraud committed by the applicant along
with the other accused persons with the
opposite party no. 2 has been revealed.
The applicant had received huge amount
of 84,300 US$ (Rs.41,30,000/-INR) from
the opposite party no. 2 for the sake of
23000 kilograms of Copper Millberry
Scrap (99% purity of copper) but the
applicant instead of supplying the same,
supplied 04 nos. jumbo bags containing
rusty iron wires and sand which amounts
to cheating criminal breach of trust. In
order to prove
his complaint, the
complainant
and
witnesses
were
examined before the court of A.C.M.M.-
VIII, Kanpur Nagar which clearly makes
out an offence to have been committed
under sections 406 and 420 IPC. The
applicant without appearing and seeking
bail in Complaint Case NO.4182 of 2014,
has presented the application dated
04.06.2015 for cancellation of bailable
warrant. The cited case laws are not
related and applicable to the present case.
There is no lacuna in the summoning
order. Further, it is mentioned that normal
wear and tear does not mean that it would
cover the lost of 23,0000 kilograms of
goods i.e Copper Millberry Scrap (99%
purity of copper) from the aforesaid
consigned container which was shipped
by the applicant. The description and
quantity of goods mentioned in the bill of
lading dated 14.09.2009 were not found in
the consigned container because of which
joint survey of the consigned container
had been made. Article III (4) of the
Schedule i.e. Rules relating to Bill of
Lading in the Indian Carriage of Goods
by Sea Act, 1925, it is provided that a bill
of lading shall be prima-facie evidence of
the receipt by the carrier of the goods as
4 All. Jong Suek Park President Korea Marine Transport Company Ltd. Vs. State of U.P. & Anr. 163
therein described in accordance with
paragraph 3(a), (b) and (c) and Article III
(3) states that after receiving the goods
into his charge, the carrier or the master
or agent of the carrier, shall on demand of
the shipper, issue to the shipper a bill of
lading showing among other things i.e. (a)
The
leading
marks
necessary
for
identification of the goods as the same are
furnished in writing by the shipper before
the loading of such goods starts, provided
such marks are stamped or otherwise
shown
clearly
upon
the
goods
if
uncovered, or on cases coverings in which
such goods are contained, in such a
manner as should ordinarily remain
legible until the end of the voyage; (b)
either the number of package or pieces, or
the quantity or weight, as the case may be,
as furnished in writing by the shipper; (c)
the apparent order and condition of the
goods. It is further mentioned that one
year limitation is not applicable in
criminal cases. The act of the applicant
and other co-accused attract criminal
liability and the case is covered under the
purview
of
definition
of
criminal
conspiracy, criminal breach of trust and
cheating punishable under section 120-B,
406 and 420 IPC. The provision of the
Indian Carriage of Goods by Sea Act,
1925 is applicable in civil proceedings. It
is further mentioned that the accused
Sudhir Shukla and accused no. 2 Saham
Siddiqui both are residents of Kanpur
Nagar which is situated within the local
territorial jurisdiction of the trial court,
who conspired the commission of the act
with the applicant. The accused applicant
no. 3's office was situated in Mumbai and
New Delhi. As per provision of section
181 (4) of Cr.P.C.. the offence of criminal
breach of trust punishable under section
406 IPC may be inquired into or tried by a
Court within whose local jurisdiction the
offence was committed or any part of the
property which is the subject of the
offence, was required to be returned or
accounted for, by the accused person. In
the present case the accused were required
to return or account for the aforesaid
Copper Millberry Scrap to the opposite
party no.2 at its office/godown situated in
Kanpur Nagar. In the present case offence
of cheating punishable under section 420
IPC has been committed through letters or
telecommunication
messages
between
accused
persons
which
attracts
the
provision of section 182 of Cr.P.C. which
states that in cheating, if the deception is
practiced
by
means
of
letters
or
telecommunication messages, the same be
inquired into or tried by any court within
whose local jurisdiction such letters or
messages were sent or were received. In
the present case, the communications
between the accused persons has been
sent from and received at Kanpur Nagar,
hence the trial court has jurisdiction to try
the present complaint case.

10. I have heard the arguments of
both the sides and have given thoughtful
consideration to the entire material on
record.

11. It is apparent from the facts of
the case that the applicant Jong Seuk Park
(A-3),
President,
Korea
Machine
Transport Company Ltd (KMTC) is the
third accused in the complaint made by
the opposite party no. 2, in which it is
mentioned that co-accused no. 1 Sudhir
Shukla (A-1) and co-accused no. 2 Saham
Siddique
(A-2)
had
persuaded
the
opposite party no. 2 to deal in copper
scrap business, regarding which the deal
was finalized for purchase of the said
scrap from Jason Kim of the First
International company Ltd. Seoul, Korea,
quantity of which was 23 metric ton of the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
value of 84300 US$ which was to be
transported from Manila, Philippines, for
which the company of A-3 was engaged
which was dealing in transportation
business. The said consignment was to be
delivered at Kanpur. At the time of
loading the consignment and it's being
sealed, A-3 (applicant) was present who
had affixed his copper seal no. KMP 121
2651 upon the said container. The said
consignment instead of reaching Kanpur,
had reached Mumbai on 26/09/2009,
where the opposite party no. 2 had gone
to take the delivery on being informed
from the side of the accused, but when the
same was weighed, instead of 23 metric
ton copper, the concerned consignment
weighed only 6 metric ton. When the seal
of the container was opened, only four
bags of rubbish were found, therefore it
was mentioned in the said complaint that
the opposite party no. 2 was cheated of a
sum of rupees 41, 30, 000/- in terms of
Indian currency which was the value of
23 metric ton copper scrap, hence forgery
was committed by the applicant. On the
complaint being filed before court, the
accused - applicant along with 2 other coaccused named above were summoned to
face trial under Sections 406, 420 IPC.

12. The main thrust of the learned
counsel for the applicant was that the bill
of
lading
would
show
that
the
responsibility of the accused applicant
was only from shipyard to shipyard, to
reach the consignment safely and in this
case the consignment was reached Nhava
Sheva, India by his ship from Manila,
Philippines, therefore applicant could not
be imposed any liability for loss of
goods/container once they were reached
the destination port.

13. I am not convinced with the
above argument of the learned counsel for
the applicant because the transporter
cannot be absolved of his liability if any
item of the consignment is found
lost/missing. He would be jointly liable
for the said loss with other co-accused if
any, involved in its transportation as well
as in loading.

14. It was argued in this case that
there was no entrustment of the property
to the applicant, therefore the ingredient
of Section 406 IPC would not be made
out. I do not buy this argument of the
learned counsel the applicant because it is
the case of the opposite party no. 2 that at
the time when the consignment was
loaded, the applicant was present and his
seal was also affixed, which would be
treated to be nothing but an entrustment
of the said consignment which was due to
arrive in India (Kanpur Nagar) but instead
the same was delivered at Nhava Sheva,
where
it
was
found
that
the
material/consignment which was loaded
was not the same which actually was
loaded.

15. It was also argued by the learned
counsel the applicant that the criminal
complaint would be barred because of the
provisions of Section 468 Cr. P.C., which
provides the limitation of only 3 years
while in the present case the occurrence is
stated to have taken place on 29/10/2009,
when the representative of opposite party
no. 2 had gone for taking delivery of the
consignment while the complaint has
been filed on 21/07/2014, that is after
about 5 years. I have gone through the
said provision and find that for offences
punishable with more than 3 years there is
no such limitation prescribed of 3 years
and in present case since the accused has
been summoned to face trial under
Sections 406 and 420 IPC, it is apparent
4 All. Jong Suek Park President Korea Marine Transport Company Ltd. Vs. State of U.P. & Anr. 165
that the offence in recession 420 IPC is
punishable with imprisonment up to 7
years and fine, therefore the bar of 3 years
would not be applicable in the present
matter.

16. It was next argued that the matter
is of civil nature, therefore the criminal
complaint
preferred
by
the
accused
applicant would not be maintainable. If at
all any loss had occurred in the present kind
of commercial transaction, the option to the
opposite party no. 2 was available to file a
claim petition in Civil court and get the
claim/compensation decreed for the loss
suffered by him, but instead of doing that,
with malafide intention, the present criminal
proceedings have been preferred, which
need to be quashed. To substantiate his
argument reliance has been placed by the
applicant upon Appeal (Crl.) 834 of 2002
M/S Indian oil Corp vs M/S NEPC India
Ltd, and others, decided on 20 July, 2006 in
which in Para 10 following is held by
Hon'ble Supreme Court:

"....... It is to be seen if a matter,
which is essentially of Civil nature, has
been given a cloak of criminal offence.
Criminal proceedings are not a shortcut of
other remedies available in law. Before
issuing process a criminal court has to
exercise a great deal of caution. For the
accused it is a serious matter. This court
has laid certain principles on the basis of
which High Court is to exercise its
jurisdiction under Section 482 of the
Code. Jurisdiction under the Section has
to be exercised to prevent abuse of
process of any court or otherwise to
secure the ends of justice......."

17. Reliance is also placed on
Appeal (Crl.) 124 of 2007 Harish
Chandra Prasad Mani vs State of
Jharkhand and another decided on 31
January, 2007, in which following is held: