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2021 (12) TMI 236 - HC - Indian LawsDishonor of Cheque - breach of contract - offence of cheating - contention of the learned counsel appearing for the petitioner is that absolutely there is no intention whatsoever to deceive the 2nd Respondent/defacto complainant - HELD THAT:- The Courts have quashed the proceedings when the companies were not arrayed as accused and the allegations primarily targeted the company. In such a situation the company not being made a party and the Directors of the company prosecuted in their individual capacity were relieved from the criminal prosecution. It is not the case in the present FIR. The very allegation of false assurance on payment of money made against the A1 and A2 in their individual capacity. Therefore, this Court is of the view that merely the company is not made as a party, it will not absolve the petitioners when the allegation prima facie made against them. Though, it is the contention of the learned counsel for the Petitioner that there is no evidence to show that there is a deception from the inception, it is relevant to note that whether the deception was present from the inception or developed later is the matter of evidence. What has to be seen in the FIR stage is, whether the allegation attracts the offence or not. The evidentiary value of the statements or ingredients cannot be gone into while exercising power under Section 138 of the Negotiable Instruments Act. It is very clear that merely because the commercial transaction it cannot be generally concluded that no criminal prosecution is maintainable. If the allegation in the FIR prima facie show the implication of the offence, the court cannot interfere the investigation at that stage. On looking of the allegations in the present FIR, as indicated, the allegations are made against both husband and wife on false promise and assurance given from the very inception. It is also indicated that six cheques have been issued on the promise of repayment, however the same was dishonoured. Thereafter, wife also assured and given other cheques. It is also alleged that the very supply itself were made on the promises and assurances by both the parties. Petition dismissed.
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