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2019 (6) TMI 448

ng the cheques, the amount was credited into the account of the accused, thereby resulting in misappropriation of amount. The contention of the complainant that the documents in respect to the liability are fabricated also Prima­facie appears to be after thought. There is no evidence of fabrication of documents. Admittedly Civil proceeding are pending before the appropriate Court and the claims of respective parties are subject matter of the said proceeding. The Cheque for an amount of ₹ 71,17,132.90/­ was dishonoured. The said Cheque was also signed by the complainant. It was dishonoured on 12­09­2000. After receipt of intimation from banker, notice was issued to the complainant demanding the amount in accordance with Section 138 of Negotiable Instrument Act. According to the petitioner the said notice was not replied by the complainant. The defence of respondent No.1 is that there is failure to establish Prima­facie that notice was issued by the advocate for the complainant therein and was received by the accused - The fact remains, there was no amount in the account of the complainant and the cheques were dishonoured for insufficient funds. The proceedi .....

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of Perfect Trading. In the year 1990 complainant joined Electron Textile Exports Pvt. Ltd. as marking executive. The said company is now known as Patel Polymers Pvt. Ltd. (Accused No.6) The accused No.6 is a manufacturer and trader in Textile Chemicals. c) The Accused No.3 is a Chartered Accountant. He used to represent accused No.1, 2, 6 and 8 for their assessments before the Income Tax, Sales Tax, and other authorities. He was also engaged by the complainant to represent in his Income Tax and Sales Tax Assessments and other matters. d) The complainant was made director of Laser Exports Pvt. Ltd. in which accused No.1 and his father­in­law were directors. The complainant had liberty to use the office premises situated at 230, New Apollo Industrial Estate, Mogra Lane, Andheri (E) Mumbai 400 069. The complainant used to manage, conduct and operate business affairs of his proprietary concern namely Perfect Trading from the said office. e) Accused No.4 and 5 were employees of Accused No.6 and Accused No.1. Some where in 3rd week of August 2000, the complainant received notice from income tax about scrutiny of books of account of M/s. Perfect Trading for assessment year 1999&s .....

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;2000 was part of the said complaint. The said letter was fabricated. The business of Perfect Trading was dissolved on 31­03­2000. j) The Accused No.1 to 4, 10, 11, 12 had also stolen signed cheque bearing No.094531. The name of Accused No.10 was incorporated as payee of the said cheque by also mentioning the amount of ₹ 92,40,000/­ in the said cheque. The complainant received notice dated 08­01­2001 from the advocate of Accused No.10. The complainant was not liable to pay in amount to the payee. k) The Accused have forged and fabricated documents and committed various penal offences as stated in the complaint. 4. The complainant had relied upon the documents which were annexed to the complaint. In pursuance of filing of the complaint, verification statement was recorded. The Learned Metropolitan Magistrate vide Order dated 09­03­2001 issued process against the accused under Sections 403, 405, 403, 463, 464, 477A, 201, 202, 420, 425, 426, 192, 120A, 120B read with Section 34 of the IPC on the ground that there is sufficient ground to proceed against the accused. The Trial Court thereafter issued summons to the accused. 5. Learned advocate for the p .....

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he also forwarded reply dated 31­01­2001. The petitioner No.1/Accused No10 filed Criminal complaint before the Court of Metropolitan Magistrate at Ahmadabad which was registered as Criminal Case No.342 of 2001 on 09­02­2001 for the offence under Section 138 of Negotiable Instrument Act on account of dishonour of Cheque No. 094531 for an amount of ₹ 92,40,000/­. 8. The petitioners in Criminal Writ Petition No. 764 of 2001, preferred by Accused No. 6 & 7, contends that the Petitioner No.1/Accused No.6 in the course of its business sold and delivered to the complainant textile goods during the period from 03­10­1999 to 30­02­2000 as per the requirements and orders placed by respondent No.1 at the instance of Perfect Traders. Reliance is placed on invoices of the goods delivered and received by the complainant. The amount of ₹ 71,17,132.90/­ was due and payable by the complainant to the petitioner and in acknowledgement of the payment, the Cheque bearing No. 094530 dated 02­09­2000 for an amount of ₹ 71,17,132.90/­ in favour of Accused No.6. The said Cheque was presented with the bank and the same was dishonoured .....

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rticle 227 of Constitution of India are required to be exercised sparingly and only in appropriate cases. There are serious material question of fact which ought to be tried by the Metropolitan Magistrate. The complainant did not have business transactions between 18­10­2000 to 16­10­2000 with Petitioner No. 1 and the documents produced by the petitioners are false. The respondent No.1 had closed his business in the name and style of M/s Perfect Trading in March 2000 and there was no question of making purchases. Most of the accused are related to each other. There was direct nexus between the parties. Thus Cheque was forged by endorsing name of complainant and inserting the amount. Complaint was filed to the police about loss of Cheque Book. The Police did not take cognizance of his complaint. The contentions of the petitioners are disputed. In the reply filed by respondent No.1 in Criminal Writ Petition No. 764 of 2001 it is stated that, the petitioner company has filed Special Civil Suit No. 72 of 2001 in the Court of Civil Judge Senior division Palghar, for recovery of amount alleged to be due under the disputed cheque. Witnesses were examined. The petitioner ha .....

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yment or freezing of account. It is also pertinent to note that, the notice of dishonour was issued to the complainant. In reply dated 08­01­2001 it was contented that Cheques were lost and the same were misused. The petitioners have relied upon the invoices issued by Magic Creations Pvt. Ltd. The respondent No.1 is apparently been tried for the offence under Section 138 of Negotiable Instrument Act. Prima facie it appears that, the complainant was filed as a counter blast to the proceeding initiated by the accused against respondent No.1. It is not the case of the complainant that by fabricating the cheques, the amount was credited into the account of the accused, thereby resulting in misappropriation of amount. The contention of the complainant that the documents in respect to the liability are fabricated also Prima­facie appears to be after thought. There is no evidence of fabrication of documents. Admittedly Civil proceeding are pending before the appropriate Court and the claims of respective parties are subject matter of the said proceeding. The Cheque for an amount of ₹ 71,17,132.90/­ was dishonoured. The said Cheque was also signed by the complainant. .....

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