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2005(2) Bankmann 312
ALLAHABAD HIGH COURT
Amar Saran, J.
Chaman Lal — Petitioner
versus
State of U.P. and Another — Respondents
Criminal Misc. Application No. 15937 of 1992
Decided on 12-10-2004
IMPORTANT POINT
Disputed facts cannot be the basis for quashing of criminal proceedings, in exercise of inherent powers under Section 482 Cr. PC.
Headnote:Negotiable Instruments Act, 1881—Section 138; Criminal Procedure Code, 1973—Section 482; Indian Penal Code, 1860—Sections 506, 406 and 420—Dishonour of cheque—Quashing of complaint—Applicant issued cheque for Rs. 50,000/- when only Rs. 300/- was present in his bank account—Prima facie case to show intention of cheating—No ground—Application dismissed.
Facts of the case:
A)Present application under Section 482 has been filed for quashing of criminal proceedings arising out of a complaint filed under Sections 420 and 506 of IPC. The complainant filed complaint against the applicant herein for dishonour of cheque under Section 138 of N.I. Act and Sections 406, 506 and 420 of IPC. The applicant filed a revision for quashing of the proceedings. The Revisional Court had not allowed the proceedings under Section 138 of N.I. Act to proceed as notice had not been given within 15 days of return of the cheque. The applicant now preferred the present application.
B)Plea of the applicant is that it was only civil dispute between the parties and as a matter of fact the applicant had stopped payment because of failure of OP2 to supply him with the stones which had caused economic loss to him. Such claim of applicant is a question of fact which can be decided only by the trial court.
C)The applicant has given a cheque of Rs. 50,000/- when only Rs. 300/- was present in his bank account and the cheque bounced as it was likely to do so. It is quite apparent, from the very beginning applicant had the intention to cheat the complainant. No case is made out to quash the proceedings. Petition is dismissed.
Result: Favour respondent.
Amar Saran, J. : Heard learned Counsel for the applicant and the learned A.G.A.
2. This application under section 482, Cr.P.C. has been filed for quashing criminal proceedings arising out of Complaint Case No.1976/9 of 1991 under sections 420 and 506, IPC pending in the Court of CJM, Muzaffarnagar.
3. The allegations in the case were that the applicant had made an agreement with the complainant to supply him stones, which he had no intention to pay for and, consequently, the applicant had given them a cheque of Rs. 50,000/- while only a balance of Rs. 300/- was there in his account, which showed the applicant’s dishonest intention. The said cheque had bounced and, thus, the applicant was said to have committed an offence under section 138, Negotiable Instruments Act and also under sections 420 and 506, IPC. The complaint was filed on 20.6.1991. The CJM, Muzaffarnagar passed an Order on 30.7.1991, summoning the applicant under sections 420 and 506, IPC and section 138, Negotiable Instruments Act (for short, NI Act). This Order was challenged in a criminal revision No.115 of 1992, in which an Order was passed by the learned IIIrd Addl. Sessions Judge, Muzaffarnagar on 20.12.1992, holding that no offence under section 138, NI Act, was disclosed. However, the applicant was to stand trial, under sections 420 and 506, IPC. Against the aforesaid Orders, the applicant had preferred the present application under section 482, Cr. P.C. in which the proceedings were stayed by this Court on 8.12.1992.
4. The grounds for challenging the trial under sections 420 and 506, IPC are that essentially it was only a civil dispute between the parties and as a matter of the fact the applicant had stopped payment because of failure of opposite party No.2 to supply him with the stones which had caused economic loss to him. In my view, such a claim of the applicant, that he had stopped the payment because of non supply of stones and other objections to this effect, are questions of fact which can only be decided by the Trial Court and it cannot be considered in an application under section 482, Cr. P.C. in which jurisdiction this Court is not required to look to the possible defence that could be taken up by an accused. It was further contended by the learned Counsel for the applicant that in any case the dispute between the parties was of civil nature for which no mens rea could have been assigned to him. In my view, the applicant has given a cheque of Rs. 50,000/- when only Rs. 300/- was present in his bank account, and the cheque bounced, as it was likely to do so. Therefore, it is quite apparent that from the very beginning the applicant had the intention of cheating the complainant; at least, this conclusion can prima facie be drawn on the facts of the case, and there is no law stating that only because a civil suit can be filed requiring a party to make payment, no criminal case is maintainable even if the goods or other material are taken dishonestly by an accused who does not have the intention to make the payments. Learned Counsel has relied on two decisions of the Hon’ble Supreme Court in this connection. The first case is Ajay Mitra v. State of M.P. and others1. The facts of this case were that M/s. Cadbury Schweppes Beverages Company had awarded certain bottling contract to the complainant, Sanjiva Bottling company. It has also required the bottling company to indulge in certain investments including making improvements in their manufacturing plant. However, subsequently the agreement had been terminated. The appellants Coca Cola (India) and Atlantic Industries, in whose favour agreement was later on executed, approached the Hon’ble Supreme Court. So far as the appellants were concerned, they had made no representation to the complainant for incurring expenditure for improving the bottling plant they were not even in the picture at this stage. Hence the Apex Court observed that it could not be said that as a result of misrepresenta
