appln2184-10.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2184 OF 2010 Mr. Kanti Jain 1/3, Mint Road, Fort, Mumbai 400 001 .. Applicant Versus 1. M/s Fulchand Exports (A partnership Firm) 206, Creative Industrial Estate 72, N.M.Joshi Marg, Mumbai-11 Through its partner: Mr. Basant Jain 2. The State of Maharashtra .. Respondents Mr. Kanti Jain, applicant in person Mr. P. B. Patil for Respondent No.1 Mrs. M. R. Tidke, APP for the State CORAM : J.H. BHATIA, J. DATE : 26th April, 2011. P.C.: 1. Rule. Rule made returnable forthwith. 2. Heard the applicant in person and the learned counsel for respondent no.1. 3. The applicant has filed this application seeking to quash the Criminal Complaint No. 275/SS/2006 pending before the Metropolitan Magistrate, 29th Court, Dadar registered on the basis of the complaint filed by Respondent No.1. 4. To state in brief, the applicant, who is settled in U. K. claimed to be a business consultant. He had presented a business plan to Mr. Fulchand and his son Mr. Shailesh 1 appln2184-10.sxw (Partner of M/s Fulchand & Sons ) for establishment of a business in Nederland. As per the said plan, a limited company with limited capital was to be started in Europe and it was to be run and maintained by the applicant and Mr. Shailesh son of Mr. Fulchand or any other representative of Mr. Fulchand. The draft business plan submitted by the applicant was approved on 15/3/2005 and was signed by Mr. Basant Fulchand Jain for M/s Fulchand & Sons. A Demand Draft of Euro 18000 dated 26/2/2005 payable to Lalika b.v., a brand name of the applicant, was issued to him. It was actually given on 4th March, 2005. It was presented to the Bank in Landon by the applicant for encashment. However, it was returned unpaid on the ground that payment was stopped. It was revealed that Respondent No. 1- M/s Fulchand Exports, a partnership firm, which has filed the complaint in this case, had given a letter dated 31/3/2005 to the Corporation bank stating that the Demand Draft was misplaced and therefore the payment be stopped. In view of this, the payment was not received by the applicant. 5. In October, 2005, respondent No.1 M/s Fulchand Exports filed a complaint against the present applicant under section 416, 417 read with section 511 of the Indian Penal Code and the process was issued under section 417 read with section 511 of I. P. C. According to the complainant, the applicant had cheated it and had made it to issue the demand draft, which it would not have done , had the real facts were known to it. According to 2 appln2184-10.sxw the complainant, demand draft was paid as a part of the investment in the company, while the applicant claimed that it was towards his consultancy fee. 6. The applicant contended that he is a British citizen and holding a British passport and therefore he is not subject to the territorial jurisdiction of the Court of Metropolitan Magistrate in Mumbai. However, this contention cannot be accepted, particularly, when the business plan was submitted by him in Mumbai, the contract had taken place in Mumbai and the demand draft was also issued in Mumbai. Merely because he is a foreign national, he cannot be absolved from the criminal liability, if any. 7. On perusal of the documents and the complaint, it appears that the demand draft was given to the applicant on 4/3/2005, while the Business MOU was actually approved and signed on 15/3/2005. On 31/3/20005, without any notice in writing to the applicant, the complainant had stopped the payment by issuing letter to the Corporation Bank, stating that the demand draft was misplaced. It was a false statement made by the complainant because it was within the knowledge of the complainant that the demand draft was actually handed over to the applicant on 4/3/2005. The demand draft was presented to the Bank in Landon by the applicant on 4/4/2005, without any intimation from the complainant that he had stopped the payment. After presentation of the demand draft, he came to 3 appln2184-10.sxw know that the payment was stopped by the complainant. The business plan, as per the MOU, could not be materialized. Had the applicant attempted to encash the demand draft before approval and signing of the MOU and then had vanished, it could be said that he had tried to cheat the complainant. But, in the present case, he did not present the demand draft before the MOU was signed. After the MOU was signed, he was justified in presentation of the demand draft in the bank for encashment. However, the complainant actually played a mischief and stopped the payment by giving false reason to the bank that the demand draft was misplaced, while the demand draft, to his knowledge, was handed over to the applicant for payment. There is, possibility that if the complainant would have informed the applicant that the payment was stopped, he would not have presented the demand draft to the bank for encashment. From this, prima facie, no case of cheating is made out against the accused applicant. 8. Secondly the documentary evidence shows that the contract had took place between the applicant and M/s Fulchand & Sons, though the MOU was signed by Basant Jain, who is a partner of complainant M/s Fulchand Exports, on behalf of M/s Fulchand & Sons. The contract was not between the applicant and the complainant M/s Fulchand Exports. Admittedly M/s Fulchand Exports and M/s Fulchand & Sons are two different partnership firms. As the contract had taken place between the 4 appln2184-10.sxw applicant and M/s Fulchand & Sons, the complaint could be filed, if at all, by M/s Fulchand & sons. It did not give any right or authority to M/s Fulchand Exports, another firm, to file the complaint. From this, it appears that the complainant had no locus standi to file the complaint. It appears that after the contract between the parties failed or could not materialize for one or the other reasons, the complainant stopped the payment and, therefore, the applicant did not receive any payment on account of the said MOU. After that, the complainant, appears to have attempted to harass the applicant by filing a complaint in Mumbai. 9. For the aforesaid reasons, the petition is allowed in terms of prayer clause (A). Prayer clause (A): That the Criminal Complaint No. 275/SS/06 pending before the learned Metropolitan Magistrate, 29th Court at Dadar, Mumbai in issuing processing against the applicant be quashed. 10. Rule made absolute accordingly. ( J.H. BHATIA, J. ) 5