TMI Blog2021 (12) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. - Crl. O.P. No. 29244 of 2017 and Crl. M.P. No. 16531 of 2017 - - - Dated:- 29-11-2021 - N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 SCC 513] 2. Inder Mohan Goswami Ors. vs. State of Uttaranchal and Ors. [ (2007) 12 SCC 1] 3. Paramjeet Batra vs. State of Uttarakhand and Ors. [ (2013) 11 SCC 673] 4. International Advanced Research Centre for Powder Metallurgy and New Materials and Ors. vs. Nimra Cerglass Technics Pvt. Ltd., [ (2016) 1 SCC 348] 5. Ramesh Dahyalal Shah vs. State of Maharashtra and ors. 6. Rakesh P. Sheth Ors. vs. State Ors. [: 2018 (1) MLJ (Crl.) 215] 7. Singanamala Ramesh Babu vs. State and Ors. [MANU/TN/5724/2020] 8. Duraisamy another vs. The Inspector of Police DCB, Cuddalore [Crl.O.P. No. 1128 of 2016 High Court Madras dated 07.06.2021] 9. S.M.S. Pharmaceuticals Ltd., vs. Neeta Bhalla and Ors. [AIR 2005 SC 3512] 10. Sabitha Ramamurthy and Ors. vs. R.B.S. Channabasavaradhaya [Crl.A. No. 950 of 2006 Supreme Court of India dated 13.09.2006] 11. S.K. Alagh vs. State of U.P. And Ors. [AIR 2008 SC 1731] 12. Sharad Kumar Sanghi vs. Sangita Rane [ (2015) 12 SCC 781] 13. S.K. Shukla vs. State of M.P. [MANU/MP/0272/2018] 14. I. Hemant Kumar Das and other vs. The State of Bihar [Criminal Miscellaneous No. 905 of 2018 Patna High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIR, initial stage, the Court normally would be slow in quashing the FIR. Though it is stated that there is no deception made by the 2nd accused, the allegation in the FIR indicates that the payments were assured and cheques were issued and even after dishonour of the previous cheques, thereafter fresh cheques were issued, that also dishonoured. 9. It is the contention of the learned counsel for the Respondent that whether the deception was present from the inception or deception was at later is the matter of evidence. However, the prima facie allegations in the FIR indicates that the deception from the very inception can be very easily inferred from various allegations and conduct of the parties by issuing of cheques and dishonour of cheques etc., Hence, it is his contention that merely because the case is of the commercial nature, same cannot be quashed. 10. It is to be noted that the power under Section 482 Cr.P.C. has to be exercised very sparingly. In Alpic Finance case (supra) the Honourable Apex Court has held that when the complaint does not disclose element of deception or fraud, the complaint can be quashed. In the same judgment the Apex Court has held that merely b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees of the company cannot be prosecuted and quashed the proceedings. 20. From the above judgments, the Courts are 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. 21. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice now: (f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. 27. Similarly, in Lakshman's case (supra) the Apex Court has held that mere filing of suit for recovery of money and complaint filed under Section 138 of the Negotiable Instruments Act itself is no ground to quash the proceedings in the complaints filed by the Appellant herein and further held that though the contract is of civil nature, if there is an element of cheating and fraud, it is always open for a party in a contract, to prosecute the other side for the offences alleged. 28. From the above judgments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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