1 APPLN 2419.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPLICATION NO. 2419 OF 2010 M/s. Choice Textile Centre and Ors. ... Applicants. V/s. The State of Maharashtra & Anr. ... Respondents. Mr. B.K. Ashok i/b. M/s. Bekay Legal for the Applicant. Mrs. R.V. Newton, APP for the State. Mr. Santosh P. Shetye for Respondent No.2. CORAM : K.U. CHANDIWAL, J. DATED : 29th AUGUST 2011. P.C. :- Heard. Learned Counsel for Respondent No.2 has caused appearance by filing power. Affidavit in reply filed. 2. Heard extensively. The Petitioner questions prosecution for an offence under Section 406, 420 r/w. 34 of IPC pending before the learned Metropolitan Magistrate, Andheri being Case No.16/SW/2008. 3. The learned Counsel submits that simultaneous case was moved by the Respondent No.2 at Kottakkal Police Station being Crime No.243 of 2005 for identical offence. Since said case was in terms of investigation under Section 156 (3) of Cr.P.C. and as the matter was taken before the High Court at 2 APPLN 2419.10.sxw Kerala, it was quashed and set aside by order dated 10th January 2007. Learned Counsel submits, owing to the dismissal of said case, identical case at Mumbai would not be maintainable. The learned Counsel also submits that the transaction by any scale could not be between the Respondent and the Complainant as the goods were purchased by the Petitioner from the manufacturer and goods were supplied at the place of Petitioners in Kottakkal (Kerala). 4. The learned Counsel for Respondent No.2 (Orig. Complainant) submits that the Respondent No.2 has not initiated recovery proceedings. It was the criminal prosecution in terms of offence of cheating and dishonest inducement thereby mis-appropriation of the funds. 5. The contention of learned Counsel for the Applicants that the proceedings at Kerala are quashed by the High Court on 10th January 2007 require no question. However, it was not a contest but by consent and the Respondent No.2 informed the said Court that his proceedings before the Metropolitan Magistrate, Andheri being Complaint No.16/SW/2005 is prior to lodging of the report at Kerala Court. Thus, the objection in respect of primary proceedings moved by the Respondent No. 2 is bad in its nature is wrong. 6. The another feature that is argued is transaction of purchase of the textile goods by the Applicant was from the manufacturer and Respondent No.2 was only a facilitator, 3 APPLN 2419.10.sxw does not sound on good principles. The record otherwise illustrate that Respondent No.2 was a commission agent and he has co-ordinated through his clients for supplying the finished goods in textile to the Petitioner. The manufacturer were not knowing the Petitioner. Such supply from several of the parties totally amounted to Rs.33,78,312/-. Such payments are released by Respondent No.2 as a Commission Agent and responsible to liquidate. 7. Reading the complaint as a whole, it is indicative that the Applicants herein since inception of the transaction, had an mind set to cheat the Respondent No.2 or the parties and thereby dishonestly desire inducing delivery of the property The ingredients of Section 405 and 415 of I.P.C. rather clearly spell out in the complaint. It cannot be said that the matter is of a civil nature or that the suppliers have not prosecuted the Applicants herein. 8. The prosecution initiated by Respondent No.2, cannot be said to be a perversity or being of a civil nature, should be quashed. Prima-facie indication is the prosecution conforms the indictment in terms of infraction for Section 405, 415 of IPC providing the punishment under Section 406, 420 of IPC. The Petition lacks merit. Dismissed. (K.U. CHANDIWAL,J.) 4 APPLN 2419.10.sxw