Criminal Application No. 2958 of 1992

15th October, 1999

Petitioner Counsel: Mrs. RITA RAHIMTULLA i/b M/s. MANILAL KHER AMBALAL and Co.
Respondent Counsel: Mr. S.G. RAJPUT

JUDGMENT

JUDGMENT :- The petition is filed under Section 482 of Cr. P.C. for quashing the complaint filed by the respondent No. 1 Complainant in the Additional Chief Metropolitan Magistrate's 2nd Court, Mazgaon, Bombay being Case No. 109/w/82 of 1992 for the offence of cheating under Section 420 of IPC.

2. The complainant and the petitioner had business dealings. It is alleged in the complaint that the complaint had sold and delivered goods worth Rs. 98,030/- to the petitioner through the transporters as per the order placed by the petitioner. The goods were sent under different bills on four dates i.e. 18/1/91, 23/2/91, 7/3/91 and 7/3/91. After the receipt of the goods the petitioner returned some other goods by raising debit note dated 10/6/1991 for a sum of Rs. 55,637/- and another debit note dated 6/5/1991 for a sum of Rs. 15,051/- It is the case of the complainant that the petitioner-accused instead of paying the bills for the goods supplied, returned some other goods and claimed debit. On that complaint the process was issued by the learned Magistrate which is under challenge in this petition.

3. Though the Respondent-Complainant is served and as per the counsel for the petitioner, after the last date, was again given notice on 9/10/99, he is absent nor represented by any advocate. The counsel for the petitioner also argued that no case for cheating is made out by the complainant and, therefore, the process issued by the learned Magistrate should be quashed.

4. After going through the complaint and particularly the averments made in paras 3 and 4 of the complaint, in my view, the complaint does make out a prima facie case for cheating. Whether ultimately complainant succeeds or not in the complaint is a matter of appreciation of evidence that may be led by the complainant in the trial Court. The case of the complainant seems to be that after the goods were supplied by the complainant to the petitioner, the latter returned some other goods and claimed debit. Whether the goods returned by the petitioner were the same which were supplied to him by the complainant or not will be a matter of evidence. It is averred in paras 3 and 4 of the complaint as follows:

"3. The Accused, out of the aforesaid goods returned certain goods which in fact the goods not supplied by the Complainant. The Accused raised debit note dated 10-6-1991 to the tune of Rs. 55,637/-. Moreover, the Accused also returned another goods by debit note dated 6-5-1991 for Rs. 15,051/-. The aforesaid goods actually returned were not that of supplied by the Complainant. Moreover the Bill No. described in the said debit note dated 6-5-1991 was long back paid by the Accused as stated above. It seems that by returning different goods of inferior quality the Accused have criminal intention to cheat the Complainant and also to avoid criminal action. The Complainant informed facts to the Accused and called him upon to take back these inferior material not belonging to the Complainant by paying the aforesaid sum. The Complainant has not taken back the material so far."

4. The complainant states that inspite of repeated demands the Accused failed to make payment. Since he has no intention to pay the Accused used to evade to talk with the Complainant on telephone. The Complainant tried to see Accused at his given address but there also he evaded to meet the Complainant on one pretext to another. On inquiry in the market of Bombay as well as in Calcutta the Complainant came to know that the Accused cheated several innocent people and kept himself out of the police record. The Accused is seasoned Criminal."

5. In my view the above averments in the complaint make out a prima facie case and, therefore, the process cannot be said to have been wrongly issued by the learned Magistrate. The petitioner will have to vindicate himself at the trial. If the complainant proves, as alleged by him in the complaint, that the petitioner had returned different goods from those supplied to him and claimed debit notes, the process cannot be said to have issued wrongly.

6. In the circumstances the petition is dismissed. Rule is discharged. As the Respondent Complainant does not appear to be keen as he has not bothered to appear in this Court though served and is from Bombay, the petitioner-accused being a party from Calcutta is exempted from personal appearance before the Magistrate, except at the trial, so long as he is represented by an advocate.

Petition dismissed