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2019 Supreme(Bom) 1564
IN THE HIGH COURT OF BOMBAY AT GOA BENCH
M.S. Sonak, C.V. Bhadang, JJ.
Shama G. Bothe - Appellant
Vs.
State of Goa - Respondent
Criminal Writ Petition No. 84 of 2018
Decided On : 22-11-2019
Rizwan Merchant, Adv., Hemant Ingle, Adv., Sagar Sarmalkar, Adv., S.R. Rivankar, Adv., S. Bhobe, Adv.
The main legal point established in the judgment is that a mere breach of contract does not constitute the offence of cheating under Section 420 of the IPC. However, the court emphasized that the material on record indicated that the petitioners had induced the complainant to part with money through false representations, justifying the continuation of the criminal proceedings.
Headnote:
Cheating - Criminal Proceedings - Section 420, IPC - Section 34, IPC - Section 482, Cr.P.C.
Fact of the Case:
The petitioners, directors of a company, sought to quash criminal proceedings against them for alleged cheating under Section 420 read with Section 34 of the Indian Penal Code (IPC). The petitioners had earlier withdrawn a writ petition seeking the same relief and subsequently challenged the rejection of their discharge application. The court was required to determine whether the petitioners had made out a case for quashing the proceedings.
Finding of the Court:
The court found that the petitioners failed to establish that the criminal proceedings should be quashed. The court noted that the material on record indicated that the petitioners had induced the complainant to part with a substantial amount of money through false representations about their expertise and infrastructure. The court also observed that the orders of the lower courts, which had found sufficient material to frame charges against the petitioners, had attained finality. The court dismissed the petition and vacated the interim order, directing the trial court to expedite the proceedings within 12 months.
Issues: The issues involved whether the petitioners had made out a case for quashing the criminal proceedings, and whether the lower courts' orders finding sufficient material to frame charges had attained finality.
Ratio Decidendi: The court held that the petitioners had failed to establish that the criminal proceedings should be quashed, as there was sufficient material on record to indicate that the petitioners had induced the complainant to part with money through false representations. The court also emphasized that the lower courts' orders, which had found sufficient material to frame charges, had attained finality.
Final Decision: The petition was dismissed, and the interim order was vacated. The trial court was directed to expedite the proceedings within 12 months.
JUDGMENT :
M.S. Sonak, J.
The Petitioners who are the directors of Chinkara Motors Private Limited (CMPL), a company purported to be engaged in the business of building of boats, yachts etc., had instituted the present petition, invoking inter alia Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure (Cr.P.C.), to seek the following substantive relief’s :-
"(a) That this Hon'ble Court be pleased to call for the records and proceedings of C. C. No.191/S/2014/A from the Court of Chief Judicial Magistrate, at Panaji Goa;
(b) That this Hon'ble Court after going through the legality and propriety of the impugned order dated 28.12.2016 passed by the learned Magistrate, be pleased to quash and set aside the said order;
(c) That this Hon'ble Court after going through the legality and propriety of the impugned order dated 08.02.2018 passed by the Hon'ble Sessions Court, be pleased to quash and set aside the said order;
(d) That this Hon'ble Court after going through the legality and propriety be pleased to quash the proceedings in C. C. No.191/S/2014/A, pending on the file of learned Chief Judicial Magistrate, at Panaji Goa."
2. The Petitioners, through their learned counsel, however, on 25th April, 2018, made a statement before this Court that they are not pressing for the relief’s in terms of prayer clauses (b) and (c) above, but are pressing for the relief only in terms of prayer clause (d) as above, i.e. for quashing of the proceedings in C.C. No.191/S/2014/A, pending on the file of the Chief Judicial Magistrate at Panaji Goa. This statement came to be recorded by this Court in its order dated 25th April, 2018.
3. The order dated 25th April, 2018, to the aforesaid effect, reads as follows :-
"An intervention is made on behalf of the complainant who has not been made party in this petition. The learned Counsel for the Petitioner states that the complainant will be made party respondent. Leave to amend for that purpose is granted. Amendment to be carried out during the course of the day. Copy of the Petition will be served on the learned Counsel for the complainant.
2. The learned Counsel for the Petitioner states that the Petitioner is not pressing for prayer clauses (b) and (c) and is only pressing prayer clause (d) i.e quashing of the Proceedings.
3. Stand over to 5 June 2018."
4. Therefore, it is quite clear that in the present petition, we are only required to go into the issue as to whether the Petitioners have made out any case for quashing the proceedings in C.C. No.191/S/2014/A pending on the file of the Chief Judicial Magistrate at Panaji Goa. The learned counsel for the Petitioners as well as the Respondents, in unison confirmed that this is indeed the position. No doubt, the learned counsel for the Respondents have raised the issue relating to the maintainability of the petition.
5. On 2nd July, 2013, the FIR No.269/2013 came to be registered against the Petitioners alleging the offences under Section 420 read with Section 34 of the Indian Penal Code (IPC).
6. Soon thereafter, the Petitioners instituted Criminal Writ Petition No.105 of 2013 seeking for quashing of FIR No.269/2013. The Petitioners, however, withdrew this Writ Petition on 29th January, 2014, without seeking any leave to institute any fresh petition.
7. On 19th August, 2014, the charge-sheet bearing case No.191/S/2014/A came to be filed in the Court of the Chief Judicial Magistrate, Panaji in FIR No.269/2013. Thereupon, the Petitioners filed application for discharge invoking provisions of Section 239 of the Code of Criminal Procedure. This application was rejected by the Chief Judicial Magistrate vide order dated 28th December, 2016.
8. The Petitioners, aggrieved by the Chief Judicial Magistrate's order dated 28th December, 2016, instituted a Criminal Revision Application No.2/2017 in the Court of the Additional Sessions Judge, North Goa, Panaji. Even this application was dismissed vide judgment and order dated 8th February, 2018.
9. In
