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2008 DIGILAW 341 (PAT)

Ram Prasad Poddar v. State Of Bihar

2008-02-15

ABHIJIT SINHA

body2008
Judgment Abhijit Sinha, J. 1. The Proprietor of M/S. Laxmi Drug House at Bhagalpur, the petitioner herein, has prayed for the quashing of order dated 15.2.2005 passed by Sri Saheb Kaushar, Judicial Magistrate, First Class, Patna, in Complaint Case No. 1473(C) of 2004 whereby and whereunder he has taken cognizance of offences under Sections 420, 406 I.P.C. and Section 138 of the Negotiable Instrument Act (hereinafter referred to as "the N.I. Act"). 2. M/S. Glaxo Smithkline Pharmaceuticals Limited(hereinafter referred to as "the Company") through its Manager (impleaded herein as O.P. No. 2) filed the aforesaid complaint inter alia alleging that the petitioner had obtained supply of medicines amounting to Rs. 7,90, 297/- against which a cheque of same amount was issued by the petitioner. It is further alleged that when the cheque was presented it was returned with the endorsement "Payment stopped by the Drawer", whereupon the complainant gave a legal notice but neither the goods were returned nor the money was paid. 3. It has been submitted on behalf of the petitioner that he was carrying on business with the Company for many years where medicines were supplied to him on credit basis and after selling the medicines the price thereof was paid to the Company either through cheque or demand draft. It has further been submitted that as a part of agreement of business transaction the complainant had obtained blank cheques signed by the petitioner by way of security and the petitioner against delivery of goods was required to make payment after sale of medicines as per the agreement. It has further been submitted that the petitioner, in fact, had been paying the value of medicines supplied to the Company within the time schedule but on account of some personal difficulties some payments could not be made as a result the cheques which were given to the complainant were not taken back by the petitioner even after all payments had been made. 4. The learned Counsel for the petitioner has admitted that medicines worth Rs. 7,90,297/- had indeed been supplied to the petitioner vide different invoices dated 10.4.2004 and against the said amount by way of security the petitioner had issued a cheque dated 21.4.2004. In this connection, it has been submitted that as a matter of fact a sum of Rs. 4. The learned Counsel for the petitioner has admitted that medicines worth Rs. 7,90,297/- had indeed been supplied to the petitioner vide different invoices dated 10.4.2004 and against the said amount by way of security the petitioner had issued a cheque dated 21.4.2004. In this connection, it has been submitted that as a matter of fact a sum of Rs. 9,00,000/- by way of demand draft was paid by the petitioner in between 3.5.2004 and 16.9.2004 which would be evident from the certificate issued by the Canara Bank, Bhagalpur and from the same it would be apparent that the Company had received payment in lacs and lacs between 10.4.2004 to 3.7.2004. 5. The learned Counsel also sought to point out that the complainant had filed another complaint case bearing No. 1472(C) of 2004 on 3.7.2004 for the non payment of Rs. 3,26,804/- and Complaint Case No. 1474(C) of 2004 for Rs. 8,63,491/- apart from the present case and from the perusal of the three cases instituted by the complainant, it appears that the total demand is Rs. 28,25,563/-against which the petitioner had already paid Rs. 25,22,356/- by way of demand draft which would be apparent from the details given in Annexure-4 to this application. It has finally been submitted that since the entire matter revolves round accounting., the relief, therefore, could be sought only through civil action and criminal prosecution of the petitioner, in the facts and the circumstances of the case, was not justified. It was also submitted that from the materials available in the record, no offence either under Sections 420, 406 I.P.C. or the N.I. Act is made out against the petitioner. 6. The learned Counsel also sought to point out that the parties had compounded the offences and had entered into an agreement dated 30.9.2005 whereurider the petitioner had agreed to obey the conditions of the compromise. A compromise petition with another petition seeking permission to compromise had been filed in the trial court on 18.11.2005 and on this basis the learned Counsel for the petitioner submitted that the complaint case should be quashed. 7. The learned Counsel for O.P. No. 2 has, however, objected to the compromise on the ground that although the compromise petition was filed way back on 18.11.2005 yet not a single farthing outstanding with the petitioner has been paid till today. 7. The learned Counsel for O.P. No. 2 has, however, objected to the compromise on the ground that although the compromise petition was filed way back on 18.11.2005 yet not a single farthing outstanding with the petitioner has been paid till today. In this context, the learned Counsel sought to point out that from the conduct of the petitioner it would be apparent that he brooked an intention to cheat the Company as would be apparent from the facts that the cheque issued by the petitioner in favour of the Company had been returned on the ground that the payment was stopped by the drawer and then again after having entered into a compromise and filing a compromise petition in the court not a single farthing has been paid. 8. From the respective stand of the parties, it appears that whereas the Company claims that certain sum is still due with the petitioner, the petitioner claims to have paid off all the amount that had been outstanding. The net effect of the case would, therefore, be that it is a case of accounting and could be resolved by way of civil action. 9. It is now by well settled by several decisions of the Apex Court that if the dispute is purely and exclusively of civil nature, criminal liability cannot be attracted and no criminal proceeding was maintainable. However, in cases where the facts and circumstances do suggest and make out a prima facie case of certain offences punishable under the Penal Code mere fact that civil liability arises out of the dispute cannot be taken as a ground to refuse criminal prosecution. 10. In the instant case, the very fact that a compromise petition had been filed goes to indicate that certain sums of the Company are still due with the petitioner or else there was no question of filing a compromise petition. That apart notwithstanding filing of the compromise petition as submitted by the learned Counsel for the Company not a single farthing has been paid by the petitioner although more than two years have passed and these facts have not been refuted by the petitioner. This only goes to show that the intention of the petitioner was dishonest. In this case the bouncing of the cheque on account of payment being stopped by the drawer also goes against the petitioner. 11. This only goes to show that the intention of the petitioner was dishonest. In this case the bouncing of the cheque on account of payment being stopped by the drawer also goes against the petitioner. 11. Due regard being had to the discussions made above, I find no merit in this application which is dismissed. However, in view of the compromise petition having been filed in the court below if the petitioner has cleared his outstanding dues, the learned Magistrate will take into account this fact and dispose of the complaint petition in accordance with law and if in the event the payment of outstanding dues has not been made till now, the learned Magistrate will proceed with the trial and dispose of the same expeditiously, preferably within a period of nine months.