1 CRWP 2876/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITOIN NO.2876 OF 2010 RMZ Corp Holdings Pvt. Ltd. .... Petitioner. V/s M/s GSC Toughened Glass Pvt. Ltd. & others. .... Respondents. Mr. Ganapati Hegde & Mrs. Vikas Kumar i/b Anil T. Agarwal for the Petitioners Mr. D.S. Hatle with Mr. D.P. Jamsandekar for Respondent No. 1. Mr. A.S. Shitole, APP for the State. CORAM: V.M. KANADE, J. DATE : 19th November, 2010 P.C:- 1. Heard the learned Counsel for the Petitioner and the learned Counsel for Respondent No.1. 2. Petitioner, by this Petition, is challenging the order of issuance of process passed by the learned Magistrate in a complaint filed by Respondent No.1 for the offence punishable under sections 120B, 418, 420, 427, 463 read with section 34 of the Indian Penal Code. 2 CRWP 2876/10 3. Brief facts are as under:- 4. Petitioner is a Private Limited Company registered under the provisions of Companies Act. Petitioner is a Builder and Developer. A complaint was filed against the Petitioner by Respondent No.1 in which it was alleged that the Petitioner herein induced the complainant to supply material to accused No.1. In the complaint, it is alleged that accused Nos. 2 and 4 used to deal with the complainant and the complainant had been supplying various kinds of products as per the requirements placed by Respondent No. 1 such as Toughened Glass, Laminated Glass and Insulated Glass etc. After supplying these goods, invoices were raised. However, accused No.1 committed default in payment of dues of the complainant and, therefore, the complainant became careful in dealing with accused No.1. The dispute between the complainant and accused No.1, however, was settled and a document was executed in which accused No.1 agreed to pay an amount of Rs 16,75,000/- to the complainant and the 17 post-dated cheques were issued. However, except once cheque, all other cheques to the tune of Rs 15,75,000/- were dishonoured. Therefore, a summary suit was filed by the complainant against original accused Nos. 1 and 2. It is further alleged that, thereafter, accused No.1 approached the complainant for supply of Laminated Glasses at Hyderabad at the site of the Petitioner – original accused No.3 and the purchase order was placed for delivery 3 CRWP 2876/10 of the said goods. When the said purchase order was placed, the complainant expressed its inability to extend any credit facility to accused No.1 in view of the past experience regarding non-payment of bills and accumulation of the dues. It is alleged in the complaint that the complainant agreed to deliver the goods only if the Petitioner herein i.e. original accused No.3 had given an undertaking and guarantee to directly pay to the complainant for the goods which wee to be supplied at the site of the Petitioner herein. According to the complainant, accused No.1 communicated the said condition to accused No.3 on 09/08/2004 through the Email and requested accused No.3 to make payment directly to the complainant. Accordingly, this fact was communicated by accused No.3 to accused No.1 vide his Email and this fact was confirmed by accused No.1 to the complainant by attaching Email sent on behalf of accused No.3 i.e the present Petitioner. The complainant’s case is that accused Nos. 1 and 3 visited the factory of the complainant and confirmed the purchase order. It is further alleged that since the complainant was hesitating to supply the goods to accused No.1, as an assurance of payment of the goods to be supplied by the complainant to accused No. 1, accused No.3 has drawn four cheques in favour of the complainant for the entire payment of Rs 57,14,716.14 and photocopies of these cheques were supplied to the complainant to show the guarantee towards the assurance payment given by the accused No.3. Relying on this 4 CRWP 2876/10 assurance given by the Petitioner, the complainant started manufacturing the Glasses as per specifications and supplied the goods. The first cheque which was given by accused No. 3 was honoured. Thereafter, further goods were supplied. However, original accused No.3 refused to release payment of the complainant. According to the complainant, he had manufactured 98 pieces which were according to the specifications given by the accused and, as such, the said material could not be used anywhere else or could not be sold in open market. It is, therefore, alleged in the complaint that the Petitioner and the other accused had cheated the complainant. 5. The learned Counsel appearing on behalf of the Petitioner vehemently urged that even if averments in the complaint are taken on its face value, no case for the offence punishable under sections 418, 420 of the Indian Penal Code is made out. He submitted that, at the highest, it could be said that there is breach of contract and, therefore, the dispute between the parties is of civil nature. He submitted that only in order to pressurize the Petitioner, a criminal complaint has been filed. He submitted that, after the civil suit was filed, summons for judgment was not taken out by the complainant for almost one year and, thereafter, the present criminal case has been filed. He submitted that perusal of the complaint itself discloses that the Petitioner had never any intention of cheating the complainant since 5 CRWP 2876/10 the first cheque which was given by the Petitioner was honoured. He submitted that the goods which were supplied by the complainant were found to be defective. This fact was immediately communicated to the complainant. He also invited my attention to the other letters which indicated that there was no privity of contract between the Petitioner and the complainant. He submitted that there was not a single piece of document to indicate any privity of contract between the Petitioner and the complainant. In support of the said submission, he relied upon the judgment of the Apex Court in Uma Shankar Gpalika vs. State of Bihar and another1 and the another judgment of the Apex Court in Indian Oil Corpn. vs. Nepc India Ltd. and others2. It is then submitted that the Petitioner being an artificial person, complaint for cheating could not be filed against the Petitioner. In support of the said submission, he relied upon the judgment of the learned Single Judge of this Court in Motorola Incorporated vs. Union of India and others3. He also relied upon the another judgment of the Nagpur Bench of the Bombay High Court in Natural Sugar and Allied Industries & Anr vs. Razzak Gaffar & Ors.4 (para 23). He also submitted that an incorrect statements had been made in the affidavit in reply filed by Respondent No.1. He submitted that in para 5 of the said affidavit in reply it is incorrectly mentioned that the Police Officer, after thorough investigation, has 1 (2005) 10 SCC 336 2 (2006) 6 SCC 736 3 2004 CRI.L.J. 1576 4 2006 CRI.L.J.3680 6 CRWP 2876/10 submitted his report and based on the said report the court had issued process. Secondly, it is submitted that in para 9 of the said affidavit in reply, it is wrongly mentioned that summary suit No.2862 of 2006 was filed. He submitted that averements made in the said paragraphs are incorrect and these averments are made to mislead this court. 6. On the other hand, the learned Counsel for Respondent No.1 submitted that the complainant had made out a specific case of cheating by the Managing Director of the Petitioner – Company as well as Managing Director of accused No.1. He submitted that, at this stage, no case is made out for interfering with the order of issuance of process. He submitted that this Court while exercising its jurisdiction under section 482 of the Criminal Procedure Code is not expected to see the correctness or otherwise of the averments made in the complaint. He submitted that in view of specific assurance and guarantee given by the Petitioner herein, the complainant had supplied material as per specifications demanded by accused No.1. He submitted that Petitioner had given xerox copies of the cheques in order to convince the complainant that payment wold be made. He further submitted that the plea about defect in the material was taken only after the notice was issued by the complainant. 7. After having heard both the learned Counsel at length, I 7 CRWP 2876/10 am of the view that no case is made out for interfering with the order of issuance of process at this stage. Perusal of the avermentrs made in the complaint clearly reveal, prima facie, that the ingredients of the offence punishable under sections 418 and 420 are made out. At this stage, this Court is not expected to go into the correctness or otherwise of the averments made in the complaint. There cannot be any two opinions about ratio of the judgments on which reliance is placed by the learned Counsel for the Petitioner. However, in my view, ratio of the said judgments would not apply to the facts of the present case. Hence, submissions made by the learned Counsel for the Petitioner cannot be accepted. Writ Petition is, therefore, dismissed. 8. It is, however, open for the Petitioner to apply for discharge by filing an appropriate application under section 245(2) of the Cr.P.C at the appropriate stage. If such an application is filed, the Trial Court shall decide it as expeditiously as possible. All contentions raised by the Petitioner including the contention that a complaint for cheating cannot be filed against the Petitioner being an artificial person will be considered on merits and in accordance with law. 9. Writ Petition is disposed off accordingly. V.M. KANADE, J.