TMI Blog2018 (4) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of forgery with cheating is also made out. The subsequent conduct of surreptitiously changing the office and avoiding to meet the Respondent No.2, shows the dishonest intention on the part of the Petitioners. In any case, it cannot be said that no cognizable offence is made out from the allegations in the FIR. Right from the inception, the Petitioners had induced the Respondent No.2 in parting with huge quantity of Chromo Paper. The Petitioners' conduct right from the beginning till their default in the payment and till executing the Consent Terms shows that they never intended to make the full payment. Looking at the allegations in the FIR, we are unable to hold that no cognizable offence is made out against the Petitioners. Petition dismissed. - Criminal Writ Petition No. 2906 of 2017 - - - Dated:- 3-4-2018 - R. M. SAVANT SARANG V. KOTWAL, JJ. Mr. Mahesh Jethmalani, Senior Advocate i/b Ms. Gunjan Mangla for Petitioners. Mrs. M. M. Deshmukh, Addl. P. P. for State Respondent No.1. Mr. A. H. Ponda a/w Mr. N. S. Mundargi for Respondent No.2. JUDGMENT (PER : SARANG V. KOTWAL, J.) : 1. Rule, having regard to the relief sought, made returnable forthw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners. These proceedings are as follows : (i) CC No.4780/SS/2015, (ii) CC No.4784/SS/2015, (iii) CC No.1087/SS/2015, (iv) CC No.1088/SS/2015, (v) CC No.37/MISE/2016, All these cases are pending before the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai and in all these cases different Petitioners are made accused. Apart from these Court proceedings, Summary Suit No.867 of 2015, Summary Suit No.872 of 2015 and Company Petition No.1059 of 2015 are pending before this Court on the Original Side. 6. The main contention of the Petitioners is that, this being a transaction which is purely civil in nature, the Respondent No.2 could not have lodged the FIR. In the FIR, there is no mention of any of the pending proceedings. 7. We have heard Mr. Mahesh Jethmalani, learned Senior Advocate instructed by Ms. Gunjan Mangla for the Petitioners, Mrs. M. M. Deshmukh, learned Addl. P. P. for State Respondent No.1 and Mr.Aabad Ponda instructed by Mr. Niranjan Mundargi for the Respondent No.2. 8. Before referring to the submissions made by the parties, it is necessary to advert to the contents of the FIR. The FIR was initially registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and even changed his office without informing the Respondent No.2. The Respondent No.2 found out the new office of the Petitioner No.1 and again asked for his outstanding dues. Even at that time, further assurance was given to him but the amount was not paid. It is further mentioned in the FIR that the Petitioner Nos.1 and 4 issued 9 cheques of Punjab National Bank and Federal Bank amounting to ₹ 4,66,12,785/ . However, these cheques were dishonoured. Therefore, the Respondent No.2 sent a statutory notice under the Negotiable Instruments Act to M/s. Sharp Industries Ltd. and its Directors. At that time, the Respondent No.2 was informed that the Petitioner Nos.1 and 4 were not the Directors of M/s. Sharp Industries Ltd. Thereafter, the Respondent No.2 was convinced that the Petitioners had no intention to make the payment of the dues and were cheating him. According to the Respondent No.2, the Petitioner No.1 falsely represented that he was the Managing Director of M/s. Sharp Industries Ltd. when he had already resigned. According to the Respondent No.2, all the Petitioners made false representations, induced the Respondent No.2 to supply huge quantity of Chromo Paper, made f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment. Taking support from these observations, Mr. Jethmalani submitted that once the Chromo Paper was delivered by the Respondent No.2's firm by way of a sale, there was no question of any entrustment by the Respondent No.2 to any of the Petitioners and therefore, there could not be any criminal breach of trust. 11. Mr. Jethmalani then relied on the observations of the Hon'ble Supreme Court in the case of Vir Prakash Sharma Vs. Anil Kumar Agarwal and Another (2007) 7 Supreme Court Cases 373. In the said Judgment, the Hon'ble Supreme Court considered the other Judgments laying down the requirements in exercising the power under Section 482 of the Cr.P.C. In that case, it was held in the facts relating to that case, that, the dispute between the parties was essentially a civil dispute. It was observed that non payment or under payment of the price of the goods by itself did not amount to commission of offence of cheating or criminal breach of trust. In the said Judgment, the case of Hridaya Ranjan Prasad Vs. State of Bihar (2000) 4 SCC 168 : 2000 SCC (Cri) 786 was considered wherein it was held that in determining the question, it had to be kept in mind th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without pursuing the issuance of process and consequent proceedings under Sections 406/420 or any other offences under the IPC, the Respondent No.2 had resorted to filing the FIR in question. Thus, according to Mr. Jethmalani, the observation made in the said case of G. Sagar Suri (supra) were squarely applicable to the facts of the present case and therefore, the FIR in the present case was liable to be quashed. 13. Mr. Jethmalani then relied on the observations made by the Hon'ble Supreme Court in the case of All Cargo Movers (India) Private Limited and Others Vs. Dhanesh Badarmal Jain and Another (2007) 14 Supreme Court Cases 776. It was observed that the ingredients of the offence were not averred in the criminal complaint which was filed one year after the civil suit. In the civil suit, the allegations were of negligence and breach of contract and it was held in that case that breach of contract simplicitor did not constitute an offence. Mr. Jethmalani, thereafter, referred to two more cases viz. Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others (2007) 12 Supreme Court Cases 1 and V. Y. Jose and Another Vs. State of Gujarat and Anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the present Writ Petition for quashing of the FIR. According to Mr. Ponda, this conduct on the part of the Petitioners not only shows that the offence was committed but their conduct disentitles them from seeking any relief from this Court in its writ jurisdiction. 17. Mr. Ponda submitted that, this was not a case of mere breach of contract but the ingredients of all the offences alleged were clearly made out. He invited our attention to the email sent by the Petitioner No.4 to the Respondent No.2 on 05/04/2011 wherein a purchase order for the Chromo Art Paper for trial was placed with the Respondent No.2. The purchase order was placed on behalf of M/s. Sharp Industries Ltd. In the said email, it was clearly mentioned that the email was sent with reference to the visit at the Respondent No.2's office by the Petitioner No.1. Significantly, the Petitioner No.1 was described as 'our Managing Director'. Mr. Ponda submitted that even as per the case of the Petitioners, the Petitioner No.1 had resigned from M/s. Sharp Industries Ltd. before that and yet he was described as the 'Managing Director' of the said company. According to Mr.Ponda, this fortifies the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Z to lend him money, A not intending to repay it. A cheats. 11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities. 12. The High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415, IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proached this Court with clean hands and therefore, they do not deserve any relief. 23. Mr. Ponda emphasized that all the Judgments cited by Mr.Jethmalani were in respect of the facts of those cases which were quite different from the facts of the present case. According to Mr.Ponda, the ingredients of the offences were clearly made out. He submitted that in the case of G. Sagar Suri (supra), the complaint under Section 138 of the NI Act did not mention any allegation of any corrupt practice by any of the accused. Thus, according to Mr.Ponda, in that case, the FIR was an afterthought with new allegations. However in the present case, the complaint under Section 138 of the NI Act already mentions as to how the Respondent No.2's firm was cheated and how the offences were committed. Mr. Ponda submitted that there was no bar for lodging the present FIR even in the background of the earlier pending litigation. 24. Having considered the rival submissions, we are of the opinion that the present FIR does not pertain to a purely civil transaction. The false representation and inducement is very clear from the email sent to the Respondent No.2 for placing the purchase order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides for the period of limitation for the complainant to complete the procedural formalities and to approach the Court. Whereas if the transaction is attended by other serious offences under the IPC, in a given case the investigation is necessary; particularly when many accused are involved and the evidence can be collected only by an investigating agency. In such cases, it would not be proper to relegate the complainant only to the remedy of the prosecution under the NI Act which he can take recourse to by way of filing a private complaint. In such cases, the complainant's right to approach the police and get the offences investigated by them, cannot be scuttled. 27. It has to be noted that the Petitioner No.1 had entered into the Consent Terms with the Respondent No.2's firm accepting their liability and making commitment of fulfilling the same. There is considerable force in the submission of Mr. Ponda that the Petitioners have dishonestly resiled from their commitment. It cannot be lost sight of the fact that some of the Petitioners were granted bail by the learned Magistrate based on the submission made by the parties that the matter was settled i.e. on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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