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2013 DIGILAW 1272 (RAJ)

Vijay Choudhary v. State of Rajasthan

2013-07-15

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT 1. - The present petition has been faded under Section 482 Cr.P.C praying that the FIR No. 183/2009, registered at police station Manak Chowk, Jaipur City (North) for the offence under Section 420 and 406 IPC be quashed. The petitioners in the present case are running a shop in the name and style of M/s. Jewel International. The complainant respondent is also a jeweler. The petitioner firm purchased some jewelery articles form the complainant firm namely M/s. Vinayak Jewelery, Jaipur. It is not disputed that for the purchase of jewelery articles the petitioners had issued four cheques which on presentation had bounced and the complainant has instituted complaints for prosecution of the petitioners for offences under Section 138 of the Negotiable Instruments Act. The complainant also lodged a FIR with the police stating therein that the jewelery articles were given on trust to the firm of the accused petitioner through younger brother of the petitioner for approval by the elder brother accused petitioner No. 1. 2. Counsel for the petitioner has submitted that, in the litigation under Section 138 of the Negotiable Instruments Act, the complainant has made out a case of sale of jewelery articles. It is contended by the learned counsel for the petitioner that non-payment of the good purchased, as part of the ongoing business transactions will not constitute criminal liability and the petitioner cannot be tried for offence of criminal breach of trust and misappropriation. Reference has been made to para 4 of the petition to state that it was not a case of a single transaction. 3. Counsel for the petitioner has placed reliance on 2005 SCC (Cri.) 1515 that non-payment on goods purchased will not constitute criminal liability. 4. The learned counsel Shri Rajesh Goswami appearing for the complainant has submitted that even though the accused petitioners have issued cheques and they are being prosecuted under Sec.138 of the Negotiable Instruments Act, same will not oust the offence under Section 406 IPC against the petitioners, as they are guilty of criminal breach of trust. 5. After hearing the rival submissions advanced by the counsel for the parties it is apparent that the sale of goods was for a consideration and this Court cannot be oblivious of the fact that the petitioner accused and the complainant were engaged in purchase and sale of jewelery articles and there were ongoing business transactions between the parties. 5. After hearing the rival submissions advanced by the counsel for the parties it is apparent that the sale of goods was for a consideration and this Court cannot be oblivious of the fact that the petitioner accused and the complainant were engaged in purchase and sale of jewelery articles and there were ongoing business transactions between the parties. Therefore from bare perusal of the record and Annexure El, it is apparent that for non payment of the goods sold, the petitioners are being tried. It is a case of civil liability and therefore the prosecution of the petitioners and the impugned FIR is nothing but only abuse and misuse of process of law. 6. Accordingly the present petition is accepted, and the impugned FIR along with all subsequent proceedings is quashed.Petition Accepted. *******