1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1798 OF 2008 Bralco Metal Industries Limited : Petitioner (Orig.Resp.no.1/Orig. Complainant) V/s. State of Maharashtra & Ors. : Respondents ... Mr.A.P.Mundargi, Senior Advocate, with Mr.Yusuf Iqbal i/b. Yusuf & Associates for the petitioner. Mr.S.N.Gawade, Addl. Public Prosecutor for respondent no.1. Mr.Mahesh Jethmalani, Senior Advocate, with Mr.Pranav Badheka i/b. Mr.Gaurav Belosay for respondent nos.2 to 5. ... CORAM : S.A. BOBDE, J. DATE : AUGUST 6, 2009. P.C.: 1. This is a Petition under section 482 of the Code of Criminal Procedure challenging the order of the Sessions Court by which the respondents-accused have been discharged. 2. The petitioner made a complaint before the Magistrate under section 420 read with 34 of the Indian Penal Code against the respondent nos.2 to 5 alleging cheating. The transaction in respect of which the 2 complaint was made was supply of copper sheets by the petitioner to the respondents-accused for which apparently the accused have not paid the price. Earlier, the Magistrate issued process on the complaint. The respondent nos.2 to 5, therefore, preferred a revision before the Sessions Court and the Sessions Court reversed the order. Hence this Petition. 3. Mr.Mundargi, the learned counsel for the petitioner, referred to the reply to the notice sent by the respondent nos.2 to 5 to the petitioner’s notice for initiating action. According to the learned counsel, the reply in which the respondents, for the first time, have alleged defective goods breads of dishonesty and, therefore, ex facie the offence under section 420 has been made out. 4. Mr.Jethmalani, the learned counsel for the respondent nos.2 to 5, on the other hand, relied on the decision of the Supreme Court in All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain (AIR 2008 S.C. 247) where the Supreme Court has observed in paragraph 17 as follows:- “17. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this 3 Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be 4 encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.” From the aforesaid observations, it is clear that it cannot be said that the transactions between the parties in which there was negligence or breach of contract on the part of one of the parties simplicitor does not constitute an offence. In the present case, it must be noted that the goods were supplied by the petitioner to the respondents and in the usual course of business there is correspondence which shows that the respondents sought for continued supply of goods on promise of payment in due course. Though some payments were admittedly made, the entire payment was not received by the petitioner. In fact, in order to recover the unpaid price of goods, the petitioner issued a notice under section 433 of the Companies Act and also filed a Company Petition. This petition was eventually dismissed. The learned Sessions Court has relied on the admitted position that the moneys have been paid from time to time and has relied on the observations of this Court while dismissing the Company Petition:- “moneys have been paid from time to time and 5 closing debit balance as on 31/03/1999 is Rs.52,12,590.40. So far as the case of the petitioner is concerned, the same is a claim on the basis of a running account. It is further observed that in same paragraph No.3 of the judgement, that payment have been made subsequently, the same is the question of accounts.” 5. Further, the Sessions Court has rightly relied on paragraphs 8, 9 and 10 of the complaint where the petitioner has stated that though the goods were supplied, money was not paid in time and, therefore, the petitioner gave time for such payment. Having considered the matter at length, I am of view that the transactions are common place commercial transactions in which the entire price of goods appears not to have been paid by the purchaser. Admittedly, some amount of the price has been paid by the purchaser-accused and on occasions, the complainant has granted time to the accused to make payment. These appear to be regular features in commercial transactions. In order that a complaint of cheating is considered to be possible when goods are delivered, it is well-settled that it must be shown that the delivery of goods was induced on the basis of a false representation. That does not seem to be the case here. Merely because subsequently, in reply to the notice, the accused took a stand 6 which was not taken before, viz., that the goods were defective, it cannot be said that there was dishonest intention on the part of the accused in taking delivery of the goods at that point of time. In this view of the matter, there is no reason to interfere with the impugned order. 6. The Writ Petition is dismissed. S.A. BOBDE, J.