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2004 DIGILAW 1597 (ALL)

ANWAR ALI v. STATE OF U P

2004-08-18

AMAR SARAN

body2004
AMAR SARAN, J. ( 1 ) HEARD Sri D. K. Dewan, learned Counsel for the applicant, Sri Ratnesh Khare, learned Counsel for opposite party No. 2 and the learned A. G. A. appearing for the State. ( 2 ) THE applicant has been summoned on the basis of a complaint under sections 417, 420, 468, IPC filed by opposite party No. 2 by the C. J. M. , varanasi in Criminal Case No. 3544 of 2001 M/s. Sardar Fashion v. Anwar ah, proprietor: The allegations in the complaint were that the complainant who was a dealer in saris and other cloth, had supplied goods wroth Rs. 1,07,000/- and odd to the applicants firm on 4. 7. 2000. The goods were supplied as the applicant had met the complainant on many occasions and satisfied him about his bona fide in paying for the goods. In lieu of the goods the applicant gave the complainant 4 cheques, of Rs. 12,000/- and odd, rs. 24,000/- and odd, Rs. 27,000/- and odd and Rs. 43,000/- and odd dated 21. 10. 2000. These cheques were drawn on a branch of Bank of Baroda, mumbai. ( 3 ) THE complainant deposited the said cheques in his account in a branch of Central Bank of India, Varanasi for clearance. However, the cheques were dishonoured as the applicant had asked his bank at Mumbai to stop payment on the cheques. The complainant waited for a long time for the applicant to make payments on the cheques and also contacted him on several occasions on the telephone. But the payments were not made. The complainant even sent a notice on 27. 3. 2001 to the applicant under section 138 of the Negotiable Instruments Act. But in pursuance of a conspiracy the applicant did not permit the said notice to be effected on him. Thereafter, the applicant made no efforts to make the payments on the aforesaid amount. The entire actions of the applicant were made with a dishonest intention to procure the goods from him without payment. ( 4 ) AFTER examining the complainant under section 200, Cr. P. C. and his witness Iqbal Ahmad under section 202, Cr. P. C. , the learned CJM passed the impugned order dated 28. 8. 2001 summoning the applicant under section 420, IPC. ( 4 ) AFTER examining the complainant under section 200, Cr. P. C. and his witness Iqbal Ahmad under section 202, Cr. P. C. , the learned CJM passed the impugned order dated 28. 8. 2001 summoning the applicant under section 420, IPC. ( 5 ) IT is submitted by the learned Counsel for the applicant that initially it appears that the complainant wanted to file a complaint under section 138 of Negotiable Instruments Act, but in a mala fide manner he has not done that and instead he has filed the present complaint under section 420, ipc. I think from a reading of the complaint, it is apparent that the complainant has mentioned that he was trying to effect service of the notice on the applicant under section 138 of the N. I. Act after the cheques had been illegally dishonoured, but in a fraudulent manner in order to cause dishonest loss to the complainant, due to the machinations of the applicant, the notice could not be effected on him. Moreover, a case of bouncing of cheques where section 138 of the N. I. Act could have applied, may also constitute an offence under section 420, IPC, if the facts disclose such an offence. ( 6 ) THE learned Counsel for the applicant submits that in view of the delay in filing the complaint on 11. 5. 2001, when the goods were supplied on 4. 7. 2000, and the cheques issued on 21. 10. 2000, the proceedings may be quashed. The complaint itself mentions that the complainant was making every effort to secure payments from the applicant for the goods delivered by him, by repeatedly telephoning him and other means. When everything failed he was not left with any option except to file the complaint. Business men are reluctant to file complaints in a hurry, but that does not detract from the genuineness of a complaint when the facts disclose the offence alleged, and delay certainly constitutes no ground for quashing criminal proceedings at the threshold, in such circumstances. ( 7 ) IT was next submitted that the ingredients of cheating are not disclosed and in any case there was no intention to cheat from the beginning. ( 7 ) IT was next submitted that the ingredients of cheating are not disclosed and in any case there was no intention to cheat from the beginning. If a party represents to another that he should effect delivery of goods to him, and he would pay for the same, when he really has no intention to pay for the same, and on the strength of that representation the second party supplies the goods then certainly a prima facie case of cheating is disclosed. It will be seen at the trial, and not in the present application under section 482, Cr. P. C. whether the applicant had an intention to cheat from the beginning or whether that intention developed later on. But apparently there are several adverse circumstances against the applicant. One, is his complete lack of effort to make payments on the dishonoured cheques at any stage. Second, the allegation that he did not permit the notice under section 138 of the N. I. Act to be effected on him. Whether this allegation is a fact or not, can also not be appreciated at this stage, but can only be judged at the trial. The learned Counsel for the applicant has tried to make much capital of the fact that he once made a payment of Rs. 10,000/- to the complainant. I do not know whether this claim improves the case of the applicant or further damages it. It certainly shows admission of liability, and an attempt to put pressure on the complainant to close the criminal matter, by a one time payment of this paltry amount. ( 8 ) IT was also contended by the learned Counsel for the applicant that this case only disclosed a case of civil liability and no criminal complaint would lie. It is too late in the day for the learned Counsel to contend that in cases where an accused is civilly liable no criminal complaint can be filed. In this connection the following decisions of the Supreme Court, viz. Vitoori pradeep Kumar v. Kaisula Dharmaiah, 2002 (9) SCC 581 . Kamladevi agarwal v. State of W. B. , 2001 (43) ACC 1106 (SC ). M. Krishnan v. Vijay singh, 2002 (1) J. Cr. C. 484 (SC ). Lalmuni Devi v. State of Bihar, 2001 j. Cr. C. 97 (SC ). Vitoori pradeep Kumar v. Kaisula Dharmaiah, 2002 (9) SCC 581 . Kamladevi agarwal v. State of W. B. , 2001 (43) ACC 1106 (SC ). M. Krishnan v. Vijay singh, 2002 (1) J. Cr. C. 484 (SC ). Lalmuni Devi v. State of Bihar, 2001 j. Cr. C. 97 (SC ). and C. B. I, v. Duncan Agro Industries Ltd. , 1996 (5) SCC 591 . which have clarified that existence of a civil liability is no ground for thwarting a criminal prosecution at the threshold if the facts also disclose a criminal offence, may usefully be perused. The accused certainly was under a civil liability to make payment for the goods admittedly received by him, but he could also be criminally prosecuted as the circumstances suggest a consistent course of action on his part which is indicative of his criminal intent and mens rea. His giving of 4 cheques for payment of the goods received, his instruction to his Bankers to stop payment on the cheques, his successful prevention of the notice under section 138 of the N. I. Act being effected on him, his attempt at trying to nip the case in the bud, by making a paltry payment of Rs. 10,000/- for the goods worth Rs. 1,07,000/-and odd supplied to him. ( 9 ) IN this view of the matter, there is no force in this application and it is, accordingly, dismissed. ( 10 ) STAY order granted on 7. 1. 2002 is vacated. Trial Court is directed to conclude the trial within six months. Application Dismissed. .