IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Misc. Application No. 118 of 2005 1- Dr. V.K. Pande S/o Late Dr.M.L. Pande, Proprietor M/S Naini Paint House, Prem Cinema Road, Opp. S.D.M. Court, Haldwani, District Nainital. 2- Rohit Pande, S/o Dr. V.K. Pande, District Nanital … Petitioners. Versus 1. State of Uttaranchal, 2. Judicial Magistrate (C.B.I.) Dehradun, 3. Sunil Kumar Gupta S/o late Vigyan Prakash Gupta Proprietor, M/S Vigyan Lime and Company G-37, Race Course, Dehradun …Respondents. Sri Manoj Tewari, learned counsel for the petitioners. Sri S.K. Jain, learned counsel for the respondent No.3 Leanred A.G.A. for the State. Dated: 26-2-2008 Hon'ble B.C. Kandpal, J. By way of this petition under Section 482 Cr.P.C. the petitioners, who are facing trial in a criminal case No. 637 of 2004, Sunil Kumar Gupta Vs. Naini Paint House and others, U/Ss 420 and 120-B I.P.C., have sought the relief for quashing the proceeding of the aforesaid criminal case. 2. Brief facts, as per the petition, are that the petitioner No.1 is the proprietor of M/S Naini Paint House and petitioner No.2 is his son. The Unit is engaged in the business of sale and purchase of paints and other allied products. The petitioners have business relationship with the respondent No.3 Sunil Kumar Gupta for the last several years, as Sri Sunil Kumar Gupta, is engaged in the business of lime and had been supplying lime to M/S Naini Paint House. Sri Sunil Kumar Gupta supplied 14.8 Metric Ton lime of the value of Rs.31,318-80 and there was an understanding between the petitioner and Sri Gupta that the payment shall be made after receiving the lime. 3. The petitioner has averred in the petition that a sum of Rs. 4,000/- was paid in cash to the complainant on 24-10-2002 against the lime supplied to the petitioner. The remaining amount to be paid to the complainant was delayed in view of the financial difficulties faced by the petitioner but any-how the petitioner paid the entire amount of Rs. 31,318-80 vide post dated cheques on different dates. The amount paid by the petitioner to the complainant through post-dated cheques was also collected by the complainant from the bank. Apart of the post dated cheques, one draft amounting to Rs. 7,000/- dated 15-7-2004, was also issued by the petitioner in favour of the complainant and the amount shown in the draft was also collected by the complainant. The petitioner has further averred that apart of the criminal complaint filed by the complainant, a civil suit No. 587 of 2004, has also been instituted by the complainant in the Court of Civil Judge (Senior Devision), Dehradun. 4- The petitioner, therefore, on the basis of the averments made in the petition, has prayed that in fact there is no ingredient of Section 420 and 120-B I.P.C. in the circumstances of the case. 5- Heard Sri Manoj Tewari, learned counsel for the petitioners and Sri S.K. Jain, learned counsel for the respondent No.3 as well as learned A.G.A. for the State and perused the record. 6- Sri S.K. Jain, Advocate appearing on behalf of the respondent No. 3 has vehemently argued that there was a dishonest intention on the part of the petitioners since very beginning of the transaction I question. He has further submitted that the payment should have in fact been made by the petitioners within a period of 30 days and failure on the part of the petitioners in making payment within stipulated period of 30 days, as has been indicated in the complaint, makes the petitioners liable under Sections 420 and 120-B I.P.C. 7- It is worthy to mention here that the counter affidavit has been filed by the respondent No.3 and in paragraph No. 11 of the counter affidavit, the complainant has accepted that he has received the entire payment due through cash, bank draft as well as four post dated cheques. The paragraph No.11 of the counter affidavit is reproduced as follows:- "That contents of paragraph 9, 10 and 11 of the said affidavit as is stated is wrong, false and denied. It is pertinent to mention here that the deponent, being cheated by the applicants, filed a criminal complaint u/s 120-B and 420 I.P.C. on 22-10-2003. The applicants, in order to save themselves from the offences u/s 120-B and 420 I.P.C., as a defence tendered the amount payable by them by way of alleged cash payment of Rs. 4000/-, one bank draft and four post dated cheques, as alleged in paragraph No.9 of the affidavit under reply. The said conduct of the applicants clearly shows their malafide intention. Had the applicant's intention been honest, they would have made the payment much earlier. The supply to the applicants was made on 10-10-2003, the complaint was filed on 22-10-2003, the payment was tendered to the deponent vide letter dated 20-7-2004 and the last payment was made through post dated cheque of 11-10-2004. It is apparent from the above sequence of events and conduct of the applicants that they did not make the said payment honestly but made the same only after having knowledge of the case, to get rid of the criminal prosecution. The payment made subsequent to the filing of the complainant will not absolve the criminal liability of the applicants. It is pertinent to mention here that the applicants by way of said letter, draft and cheques showing the tender of payment are fabricating false circumstances in their favour and are using the said circumstances in the petition, before this Hon'ble Court to gain sympathy. The said act of the applicants is an offence punishable U/S 193 I.P.C." 8- It is noteworthy that in paragraph -11 of the counter affidavit , the reply of paragraph Nos. 9, 10 and 11 of the petition has been given. Paragraph Nos. 9, 10 and 11 of the petition U/S 482 Cr.P.C. filed by the petitioners are reproduced as follows:- "9. That ultimately the applicant No.1 tendered a sum of Rs. 7,000/- through bank draft dated 15-7- 2004 and the remaining amount through four post dates cheques along with the letter dated 20-7- 2004. The entire details regarding the demand draft and the post dates cheques were mentioned in the letter dated 20-7-2004. Sri Gupta was further informed that a sum of Rs. 4,000/- has already been paid in cash to his representative on 24-10- 2002. In this connection true copy of the letter dated 20-7-2004 along with photo copies of the cheques dated 2.8.2004, 13.9.2004 and 11.10.2004 containing the stamp of the Bank concern, are enclosed herewith and marked as Annexure Nos. 4 and 5 respectively to this affidavit. 10. That it is significant to point out here that Sri Sunil Kumar Gupta has received the entire payment of Rs. 31,318-80 on different dates. The break-up of the amount received by Sri Gupta is as follows:- Sl. No. Date Mode Amount 1. 24-10-2002 Cash Rs. 4,000/- 2. 15-7-2004 Bank Draft Rs. 7,000/- 3. 2.8.2004 Cheque Rs. 5,000/- 4. 13.9.2004 Cheque Rs. 5,000/- 5. 11.10.2004 Cheque Rs. 5,000/- 6. 15.11.2004 Cheque Rs. 5,318.80 Rs.31,318.80 11. That it may be stated that the entire amount tendered by applicant No.1 in favour of Sri Sunil Kumar Guapta, Partner, M/S Vigyan Lime CO. has been accepted by him and the amount of post dates cheques have been collected by Sri Sunil Kumar Gupta through his banker Ganga Yamuna Gramin Bank. In this connection true copy of certificate dated 18-12-2004 in respect of cheques dated 18-8-2004, 13-9-2004 and 11-10-2004 and certificate dated 19-2-2005 in respect of cheque dated 15-11-2004 are collectively enclosed herewith and marked as Annexure Nos. 6 and 7 respectively to this affidavit. The last cheque dated 15-11-2004 was cleared by State Bank of Patiyala, Haldwani which is having account of M/S Naini Paint House, was cleared on 7.12.2004." 9- From a bare perusal of the above averments made in the petition as well as the counter affidavit it is clear that the complainant even after receiving the entire amount, after transaction made between the parties is interested in getting the petitioners convicted in a criminal case. I do not think that the complainant has now any interest left in the matter even after receiving the entire payment. The averment made in the complaint shows that he has filed the criminal complaint against the petitioners only to harass them and put them to an embarrassing situation. 10- It is also important to mention here that the complainant has also filed a civil suit before the court concerned for the recovery of money and this fact has not been specifically denied by the respondent No.3 in the counter affidavit. Therefore, to my mind merely by filing a civil suit, specially ion the circumstances when the complainant/respondent No.3 has received the entire amount due against the petitioner, the complainant is not going to get any fruit of that civil suit. 11- From the aforesaid discussion it is apparent that on the basis of the allegations made in the complaint no prima facie case to proceed against the petitioners under Sections 420/ 120-B I.P.C. is made out. A plain reading of the complaint reveals that it is a case of business transaction and merely on account of delay in payment of money to the supplier by the petitioner cannot held to be a sufficient ground for holding the purchaser/petitioners criminally liable. 12- With the aforesaid observations, I am of the view that in case if the criminal prosecution is continued against the petitioners, the same would amount to abuse of process of Court and the petition is liable to be allowed. 13- Accordingly, the petition is allowed. The proceeding of criminal Case No. 637 of 2004, Sunil Kumar Gupta Vs. Naini Paint House and others, U/Ss 420, 120-B I.P.C. pending before the Judicial Magistrate, (C.B.I.) Dehradun, is hereby quashed. (B.C. Kandpal, J.) ISB