IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 3848 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE D.H.WAGHELA Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO 1 to 5 No -------------------------------------------------------------- JAGDISH PRASAD PODAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AD SHAH for Petitioners MR AJ DESAI APP for Respondent No. 1 MR NITIN M AMIN for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.H.WAGHELA Date of decision: 08/09/2000 C.A.V. JUDGEMENT 1. This petition under Section 482 of the Code of Criminal Procedure prays for quashing of the order taking cognizance of offences as also the issuance of bailable warrants against the accused and the proceedings in Criminal Case No.1812 of 1993 pending in the Court of the learned Metropolitan Magistrate, 4th Court, Ahmedabad. All the original accused Nos.1 to 5 have approached this Court mainly on the grounds that the original complaint is essentially related to the dispute of a civil nature and on the basis of a vague allegation made with the intention of bringing undue pressure, the processes were issued without application of mind. The original complainant, though served, has not filed any affidavit-in-reply in this proceeding. 2. The accusations in the original complaint are that the accused being directors and managers of the company had promised the complainant that if he would carry out the job work for the accused, he would be paid according to the bill of the work done. Accordingly, the complainant had carried out the job work of printing and dyeing and issued bills therefor. Initially, the accused had made regular payments of such bills. Afterwards, when bills of Rs.1,76,160 and Rs.7,08,876 for the job work done by the complainant were given to the accused, a cheque of Rs.5,00,000 dated 3.6.1992 was given with an assurance that the remaining payment would be made within a week. However, when the cheque was presented for realisation, the same was returned and the accused had conveyed that the payment would not be made and upon insistence for the same the complainant might lose his life. On the basis of these allegations, a complaint for the offences punishable under Sections 406, 420, 34 and 114 of the Indian Penal Code was made. In the verification below the complaint, the complainant has stated on oath that the accused had got the job work worth Rs.7,08,876 done and given a cheque of Rs.5,00,000 towards it and the said cheque was returned by the bank and the money was not paid despite repeated requests and hence the complaint was filed. 3. It is submitted on behalf of the petitioners that the company of the accused was undertaking contracts for exporting materials as per the specifications and was required to adhere to the terms and conditions of delivery, quality etc. It was agreed and understood between the complainant, who represented two companies and the accused, that in case of any claim by foreign buyers in respect of the goods processed by the complainant, he would bear the loss. As a result of the job work done by the complainant, due to inferior quality of the goods, there was delay in receiving payment and short-payment from the customers. On the basis of the correspondence annexed with the petition, it is submitted that the complainant had agreed to the issuance of a debit note for Rs.9,95,553.47 and he was further requested by a letter dated 12.5.1993 to send a representative to settle the matter. Accordingly, the payment of the cheque of Rs.5,00,000 was stopped at the instance of the accused as the complainant owned the amount of loss to the accused. 4. In the background of facts as above, it is submitted that there was no question of entrustment of property by the complainant to the accused as, in fact, the fabric was entrusted by the accused to the complainant for the job work and the same was returned by the complainant to the accused. Although the cheque of Rs.5,00,000 dated 3.6.1992 was returned without payment, the complainant had not taken any immediate action and the complaint was filed after a period of eleven months only with a view to bringing pressure for recovering the amount which was not due according to the accused. It is also submitted that the transaction among the parties did not in any way disclose any offence of criminal breach of trust or cheating. 5. Obviously, the intention and grievance of the complainant as disclosed in his statement on oath before the learned Metropolitan Magistrate relates to recovery of the amount alleged to be due upon return of the cheque given to him in the course of a commercial transaction. Under such circumstances, the question that arises is whether a prima facie case against the accused was made out. As observed by the Hon'ble Supreme Court in SATISH MEHTA v. DELHI ADMINISTRATION [1996 (3) Crimes 85 (SC)], when it is clearly certain that there is no prospect of case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce conclusion on a future date. And it is further observed by the Hon'ble Supreme Court in ASHOK CHATURVEDI v. SHITUL H. CHANCHANI [JT 1998 (5) SC 452] that it is open for the accused to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence could be said to have been made out on the allegations made in the complaint. The criminal proceedings cannot be allowed to continue even where the allegations in the complaint do not make out any offence and the power under Section 482 of the Code may be exercised in such cases where the necessary ingredients of any of the offences have not been made out. 6. The learned counsel Mr.Amin appearing for the original complainant submitted that the averments in the complaint, prima facie, makes out a case for investigation and this Court cannot quash the complaint merely because one or two ingredients of the offences have not been stated in detail in the complaint. It is further submitted that quashing of the complaint on the ground of disclosure of a commercial or monetary transaction would not be justified as the complainant was obviously cheated by non-payment of the money due to him as signified by the issue of the cheque. The judgment and observations of the Hon'ble Supreme Court in RAJESH BAJAJ v. STATE NCT OF DELHI [(199) 3 SCC 259] were relied upon. It is true that the Court should not hasten to quash criminal proceedings at the initial stage merely on the premise that one or two ingredients of the offences have not been stated with details if factual foundation for the offence has been alleged in the complaint. However, if the information in the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence, it would make a rare case in which the proceedings may be quashed. In the facts of the present case, there is no allegation of entrustment of property which has been misappropriated or converted in violation of any direction of law or any express or implied condition of contract. Similarly, there is no allegation of any dishonest inducement to deliver any property which may amount to cheating under Section 415 of the I.P.C. In such circumstances, the submissions made on behalf of the complainant have no substance. 7. In the facts of this case, the vague and bald allegations of breach of trust and cheating by the accused are not even restated in the statement on oath but only a belated grievance about return of the cheque is made, as seen hereinabove. Thus, even if the allegations made in the complaint and the statement of the accused are taken at their face value, the offences under Sections 406, 420, 34 and 114 of the I.P.C. are not made out. In this view of the matter, the impugned order of the learned Metropolitan Magistrate taking cognizance of the offence and to issue the warrants against the accused cannot be sustained. It would also be futile to allow continuance of the criminal proceedings pursuant to the complaint of the complainant. 8. In the circumstances and for the reasons discussed hereinabove, the petition is allowed and the order taking cognizance of the offences as alleged and the issuance of bailable warrants against the accused by the learned Metropolitan Magistrate, 4th Court, Ahmedabad in Criminal Case No.1812 of 1993 is quashed as also the complaint and the said criminal proceeding. Rule is made absolute with no order as to costs. Sd/- (KMG Thilake) #######