1 appln2038-07 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2038 OF 2007 Dilip M. Naik .. Petitioner Versus M/s Shreyas Intermediates and others .. Respondents Mr. Parvez Ubharay for the petitioner Mrs. V. R. Bhosale, APP for the State CORAM : N. D. DESHPANDE, J. DATE : 1 st April, 2011 P. C. 1. Heard Mr. Ubharay for the petitioner and Mrs. Bhosale for the state. 2. Mr. Ubharay, learned counsel for the petitioner is, by filing this application, questioning this court as to why he should face the trial when there is no prima faice case made out for cheating for which he has been prosecuted. Earlier also the petitioner failed to establish his innocence when he was heard before the Trial Court on his application for discharge which was turned down by order dated 28 th May, 2006. It is also pointed out by the learned counsel for the petitioner that this Court, by order dated 7/7/2006 in Cri. Application No. 2169 of 2006, has given liberty to 2 appln2038-07 challenge the impugned order before the Sessions Court and keeping that remedy open in favour of the petitioner, Cri. application No. 2169 of 2006 came to be disposed of. 3. For the offence of cheating the accused was arrested and before that he sought an anticipatory bail. It is seen form the record and as stated by the learned counsel for the petitioner that there was some transactions between the parties viz. the complainant and the accused, about supply of chemicals on credit. The goods supplied to the accused were exported to another party by the accused. The accused complained about the goods purchased and delivered as substandard. When goods/chemical powder were put in the machine and machine was operated there was a foreign body (nut) found in the powder and it has spoiled the machinery and therefore the accused had sustained loss as his client refused to accept the goods sent to him. Relevant correspondence is relied on at page 85. He admitted that there was running account between the parties for the relevant period and therefore it is submitted that it is a civil dispute, not liable to be tried before the Criminal Court. Hence, it this petition impugns the pending prosecution. 4. I have gone through the Complaint which is at page 16. Last paragraph of the Complaint requires consideration, which reads thus: After the above dishonour of the hundi my company tried to contact accused no.2 over telephone but he always avoided coming on the line and in spite of numerous messages and repeated calls to accused no.2 avoided responding. Ultimately my 3 appln2038-07 company by its letter dated 30 th December, 2000 called upon the accused no.2 to make payment of the dishonoured hundi. 5. The averments made in the complaint, according to me are sufficient to substantiate the offence of cheating. Section 415 and 420 of I.P.C. are speaking about the essential ingredients of offence of cheating. Such offences which are investigated, only during trial, becomes more and more eloquent for further course of action and punishment. As such, the petition is misconceived for directing discharge at this stage. The prosecution pending against the petitioner cannot be said to be groundless. However, the petitioner shall be at liberty to prove his case of innocence and seek appropriate relief at the appropriate stage before the Trial Court and the Trial Court shall then proceed with the matter for its decision in accordance with law. So far the petitioner has no grievance that the trial court has denied any hearing. Petition, therefore, stands dismissed summarily with no order as to costs. 6. Petitioner shall be at liberty to move for expediting the hearing by the trial Court which will be considered by the trial Court on its merit. ( N. D. DESHPANDE, J. )