Criminal Writ Petition No.287 of 1990

13th December, 1996

Petitioner Counsel: Ms. MADHAVI MALKAR with Mrs. SUNANDA R. KUMBHAT
Respondent Counsel: Shri. R. R. BEHERE

JUDGMENT

D. K. TRIVEDI, J. :- The petitioner - original accused No.1 has filed this petition challenging the order of issuing process by the learned Addl. Chief Metropolitan Magistrate, Court No.28, Bombay in Criminal Case No. 1161/S/1987 on various grounds. Respondent No.1 - original complainant has filed complaint against the present petitioner alongwith respondents No.2 to 4 in the court of the learned Chief Metropolitan Magistrate for the offence under sections 420, 120B r/w 34 I.P.C.

2. In the complaint, it is the case of the complainant that the complainant is running a business of cloth in the name of M/s. Shantilal Ashokkumar & Co. situated at 77/79, Vithalwadi, 1st floor, Bombay-400002. That the complainant knows all the accused and as per the complainant, the accused Nos.2 and 3 came to his office representing that they are doing the business in the name of Mahavir Sales Corporation, Raipur (M.P.) and they belong to the Jain community. The second time they came at his office and introduced Accused Nos.1 and 4 representing that they are wholesale suppliers of textile goods in M.P. State and they showed the desire to purchase the goods from the complainant's firm. He had agreed that the transaction will be on cash payment and agreed that they shall pay amount after receiving the goods at Raipur. The complainant had a transaction with the accused firm and the textile goods were sold in favour of the accused by three different invoice dated 30-11-1985 for different amounts viz. for Rs.4,462.50/-, Rs.6,663/-, and Rs.3,919/-. When the said amount was demanded, the accused told the complainant that the same will be paid within 15 days. Inspite of the assurance, the accused has not made payment in favour of the complainant and the complainant had to visit various times at Raipur and the accused has promised the complainant for the payment and even the accused has written three letters dated 25-9-1986, 6-10-1986 and 9-12-1986 assuring the complainant that they will make payments. However, no such payment was received. In January, 1987 the complainant went to Raipur for demanding the money. He has also gone to the residence of accused No.2 and he has informed that the accused No.1 will come after seven days and the complainant has stayed at Arya Niwas Hotel, Raipur (M.P.) on that day and he again visited on the second day. The accused has issued two post-dated cheques in favour of the complainant dated 1-2-1987 and 20-2-1987 and further assured that the remaining amount will be paid at Bombay. It is the case of the complainant that the said two cheques were dishonoured and inspite of the promise that the accused will come for the payment at Bombay, the accused has not turned up. Accordingly the accused has filed complaint before the Magistrate on 16-4-1987. From the reading of the verification statement of the complainant dated 22-4-1987, the complainant has stated that he knows the accused since about one and half years. The accused purchased some clothes from him. However, the accused has failed to make any payment and the accused No.1 gave him two cheques and both the cheques had bounced.

3. The learned Magistrate, on the complaint being filed by the complainant, and considering the statement of the complainant, issued process against the petitioner and the other three accused viz. Respondents No.2 to 4 as per order dated 2-4-1987.

4. The present petition is filed by original accused No.1 and prayed for quashing of the order passed by the learned Magistrate as well as the case pending in the court of the learned Addl. Chief Metropolitan Magistrate being Criminal Case No. 1161/S/1987. While challenging the said proceedings, the Petitioner has annexed various documents alongwith the complaint and the statement of the complainant. The two letters issued by the complainant from the petitioner dated 22-1-1987 and 2-2-1987 are also produced and the statement dealing with the supply of material is also produced showing that the transactions between them were going on since many years.

5. Miss Malkar appearing on behalf of the petitioner took me through the complaint dated 16-4-1987 and the verification statement of the complainant dated 24-4-1987 and the correspondence and the documents attached to the petition. She has submitted that reading the complaint, no offence is disclosed much less than of offence under sections 420, 120B r/w 34 I.P.C. According to her, reading the complaint it shows that the business transaction between the complainant and the petitioner for purchase of textile goods were going on much earlier and the complainant also knows the petitioner. It is found from the complaint that two post dated cheques were issued by the petitioner and the said two cheques had bounced. From these facts, it will not show that the accused has committed offence and the entire transaction is of civil nature. The respondent complainant though served, has chosen not to appear in this proceeding. The learned A.P.P. appearing on behalf of the State has submitted that from the complaint it is clear that there is a transaction of purchase of textile material from the complainant by the accused and that the cheques were issued and the same had bounced. According to the learned A.P.P. the entire transaction is of civil nature.

6. On appreciating the contentions and on reading the complaint and the other documents, it would be clear that the petitioner was not known to the complainant and in fact the transaction had taken place earlier between the parties. The nature of the complaint shows that the dispute is of a civil nature for recovery of the amount with regard to the purchase of textile material and from the above no offence is disclosed under sections 420, 120B r/w 34 I.P.C.

7. Accordingly the present petition is allowed. The proceedings initiated by the respondent-complainant and the order passed by the learned Addl. Chief Metropolitan Magistrate in Criminal Case No. 1161/S/1987 are quashed and set aside. Rule is made absolute accordingly.

Petition allowed.