1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2859 OF 2002 M/s.Metal Box (India) Ltd. and another Applicants versus Rashmikant Keshavlal Daftary and another Respondents Ashok Varma i/by M/s.Tejpal & Co. for applicants. Ms.S.V.Gajre, APP for the State. CORAM : A.S.OKA, J. DATE : 13th July 2009 JUDGMENT :- 1. Heard learned counsel for the applicants. The applicants have been arraigned as accused in a private complaint filed by the first respondent alleging commission of offence under section 420 read with section 34 of the Indian Penal Code. The first applicant is a limited company and the second applicant has been arraigned as an accused in his capacity as Managing Director of the first applicant. The allegation in the complaint is that the applicants used to purchase and the first respondent used to supply to the applicants various solvents at Mumbai from time to time. From time to time, bills were raised by the first respondent. By letter dated 11th March 1999 the first respondent requested the applicants to make payment of the said bills. It is alleged that after service of the said letter, the applicant no.2 informed the first 2 respondent that the Board of Industrial and Finance Reconstruction (BIFR) has declared the applicant no.1 as a sick unit and therefore the applicants were unable to pay the bills. First respondent issued legal notice dated 16th August 1999 to the applicants and called upon them to pay the amounts. As the said notice was not complied with, the complaint was filed. Process was issued by the learned Magistrate on the said complaint. 2. The submission of the learned counsel for the applicant is that on plain reading of the complaint ingredients of the offence of cheating were not made out and there is no allegation that from the inception the applicants had an intention to deceive the first respondent. Reliance has been placed on the orders passed by the BIFR on 7th May 1988. It was pointed out that an order was already passed under sections 17(1) and 17(3) of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA). 3. None appears for the first respondent. I have perused the complaint and other relevant documents. In the first paragraph it is stated that the applicant no.2 is the Managing Director of applicant no.1 who is responsible for conducting the business of applicant no.1. In second paragraph a reference is made to the transaction of supply of solvents. In the third paragraph it is stated that the applicant no.2 disclosed on telephone that the bills cannot be paid as the applicant no.1 has been declared as a sick unit. Paragraph no.4 refers to the demand notice 3 issued by the first respondent. The only material averments in the complaint are found in paragraph 5 which read thus :- "5. The complainants state that accused no.2 had cheated the complainants by falsely telling that the decision of the Board of Industrial and Finance Re-construction prevent them to make the payment of the good which accused have purchased from the complainants and committed offence under section 420 of the Indian Penal Code. The complainants state that to cheat the complainants the accused no.2 is telling to the complainants that Board of Industrial and Finance Re- construction prevents the accused from making payment to the complainants." A very short verification statement of the complainant was recorded by the learned Magistrate. The said statement reads thus:- "... ... I have sold and supplied various solvents to the accused and accused accepted the same. Thereafter, I submitted my bills for the payment. On submitting my bills the accused told me that he runs the company under the Board of Industrial and Finance Re-construction and further said that he is unable to make the payment without the decision of Board of Industrial and Finance Re-construction. The accused have never disclosed all these things while purchasing and accepting the goods and when the question of making payment arise the accused falsely saying that Board of Industrial and Finance Re-construction prevents him from making payment and cheating me." 4. Taking the complaint as it is and reading the verification statement as a whole, it is obvious that none of the ingredients of sections 415 and 420 of the said Code were made out. There is no allegation made that there was any intention to deceive on the part of the applicants from the inception of the transaction or that there was any dishonest inducement. 4 In fact, in the complaint no particulars have been given as regards delivery of the goods made by the first respondent to the applicants and it is merely stated that the applicants did not pay the bills when demanded. 5. Apart from this, the order passed by the BIFR is placed on record. There is no reply filed by the first respondent controverting the averments made in the application. 6. In the application, the applicant must succeed and I pass following order :- (a) Rule is made absolute in terms of prayer clause (b) by setting aside the order dated 14th December 1999 and accordingly the complaint stands dismissed. (A.S.OKA, J.)