1 (CRWP1086/2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1086 OF 2010 Rashi Fertilizers Ltd. and Ors. ...Petitioners Vs. The State of Maharashtra & Anr. ...Respondents ----- Mr.A.H.H.Ponda i/b Mr.K.R. Tiwari for Petitioners Mr.J.P.Kharge -APP for the State Mr.G.S. Shelar i/b Mr.M.V. Khatavkar for Respondent No.2 ----- CORAM: V.M. KANADE J. DATED: 18TH AUGUST, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioners. 2. The Petitioners are challenging the order of issuance of process on a complaint filed by the Respondent No.2 in the Court of the Additional Chief Metropolitan Magistrate, 2nd Court at Mazgaon, Mumbai for the offence punishable under sections 420, 506(ii) r/w. 34 of the Indian Penal Code. 2 (CRWP1086/2010) 3. In the complaint, it is alleged that the complainant is a registered partnership firm and they are running a business of transporting goods and are also commission agents. According to the complainant, they are specialized in transportation of pulses, grains and fertilizers since last 20 years. 4. Petitioner - accused No.1 is a Limited Company incorporated under the Companies Act, 1956 and they are manufacturers of single super phosphate powder and granules and accused Nos. 2 to 7 were at all material times in charge and responsible for the trade and business of accused No.1 and were also Directors of accused No.1 and they had in consent and connivance with each other, with a common intention to cause wrongful loss to the complainant and wrongful gain for themselves, had committed an offence of cheating. According to the complainant, accused No.1 had made a representation that the accused is 200 crore company and that they would be giving them business of Rs 25 lakhs each month and initially they did not accept the offer given by the accused of making payment within 45 days after the date of delivery of their goods. They, thereafter told them that they would give advance of Rs 2 lakhs and would pay Rs 4 lakhs in May and balance payment in the month of June. In view of the 3 (CRWP1086/2010) representation made, the complainant delivered goods weighing 65,28,960 kg. In 338 trips from 19/04/2001 to 28/04/2001. The Bill for the said delivery of goods to the tune of Rs 24,74,030/- was accepted by the accused s office without any grievance on 02/05/2001. They, however, did not make payment as promised and informed them that the accused No.1 was a sick Company and proceedings were pending against them under the BIFR and since no other contractor was willing to take contract from them, they had hired the services of the complainant. It is, therefore, submitted that the accused had no intention from the beginning to make payment to the complainant and by a false representation had induced them to deliver the goods and, thereafter, did not make any payment and, therefore, they had committed an offence punishable under section 420 of the Indian Penal Code. 5. It is contended by the learneds Counsel appearing on behalf of the Petitioners that the dispute essentially is of civil nature and allegation is of non-payment of dues of the complainant and, therefore, offence of cheating is not made out from the averments made in the plaint. 6. It is not possible to accept this submission made 4 (CRWP1086/2010) by the learned Counsel for the Petitioner. Perusal of the complaint and the averments made therein clearly reveal that it is the case of the complainant that the accused intentionally had made a representation that they were a credit-worthy company having capital of Rs 200 crores when, in fact, they were aware that their company was sick and proceedings were pending before BIFR and that already an amount of Rs 65 crores was due and payable by them to the other creditors. In spite of this knowledge, they induced the complainant to deliver their goods in 338 trips. The averments in the complaint prima facie reveal that the allegation is that from the beginning the accused had no intention to make any payment to the complainant. Therefore, at this stage, it will not be possible to decide correctness or otherwise of the allegations made in the complaint and, therefore, it is not possible to interfere with the said order of issuance of process passed by the learned Magistrate while exercising the inherent jurisdiction under Section 482 of the Cr.P.C and writ jurisdiction under Article 227 of the Constitution of India. 7. In my view, it would be appropriate if the Petitioners file an application for discharge in the Trial Court at the appropriate stage since it will not 5 (CRWP1086/2010) be possible to quash the order of issuance of process at this stage. 8. Hence, writ petition is rejected. Liberty, however, is granted to the Petitioners to file an application in the trial court for discharge at the appropriate stage. 9. Writ Petition is accordingly disposed of. (V.M. KANADE J.) 6 (CRWP1086/2010)