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2005(2) Bankmann 403
ALLAHABAD HIGH COURT
Amar Saran, J.
Anwar Ali Prop. M/s. Samira exports, Mumbai — Appellant
versus
State of U.P. and another — Respondents
Criminal Misc. Petition No. 351 of 2002
Decided on 18-8-2004
IMPORTANT POINT
Existence of a civil liability is no ground for thwarting a criminal prosecution at the threshold if facts also disclose a criminal offence.
Headnote:Negotiable Instruments Act, 1881 —Section 138 —Indian Penal Code, 1860—Sections 417, 420, 468—Supply of goods by complainant to applicant’s firm—Dishonour of cheques issued by applicant, in lieu of goods -Complaint u/ss 417,420,468 —Legality—Existence of a civil liability is no ground for thwarting a criminal prosecution at threshold, if facts also disclose a criminal offence—Since consistent course of action on part of accused in giving instruction to his bankers to stop payment on four cheques, and successful prevention of notice u/s. 138 being effected on him were indicative of criminal intent and mens rea—Hence even though accused was under a civil liability to make payment for goods received by him, he could also be criminally prosecuted -Application having no merit, dismissed.
Facts of the case:
(A)In the instant case, a complaint under Sections 417, 420, 468 IPC was filed by complainant against applicant. It was alleged that complainant had supplied goods worth Rs. 1,07,000/- to appli-cant’s firm and applicant gave complainant 4 cheques in lieu of goods supplied. However che-ques were dishonoured on presentation as applicant asked his bankers to stop payment.
(B)Although complainant sent a notice u/s. 138, but applicant not permitted said notice to be effected on him. Moreover since no efforts were made by applicant to make payment for aforesaid amount, the aforesaid complaint was filed by complainant.
(C)The applicant has challenged said complaint on ground that since case only disclosed a case of civil liability, no criminal complaint could lie.
(D)Findings of the court -The court held that existence of civil liability was no ground for thwarting a criminal prosecution at threshold if facts also disclosed a criminal offence. Although accused was under a civil liability to make payment for goods received by him, but he could also be criminally prosecuted as circumstances suggested a consistent course of action on part of applicant indicating criminal intent. As applicant gave instruction to his bankers to stop payment on cheque and prevented notice u/s 138 being effected on him, and tried to make a paltry payment of Rs. 10,000/- for goods worth Rs. 1,07,000/- it showed criminal intent on his part. Held, that application had no merit, and was liable to be dismissed .
Result: Application dismissed
Amar Saran, J.:—Heard Sri D.K. Dewan, learned Counsel for the applicant, Sri Ratnesh Khare, learned Counsel for opposite party No. 2 and the learned A.G.A. appearing for the State.
2. The applicant has been summoned on the basis of a complaint under Sections 417, 420, 468, IPC filed by opposite party No.2 by the C.J.M., Varanasi in Criminal Case No.3544 of 2001 M/s. Sardar Fashion v. Anwar Ali, proprietor. The allegations in the complaint were that the complainant who was a dealer in ‘saris’ and other cloth, had supplied goods worth Rs. 1,07,000/- and odd to the applicants firm on 4.7.2000. The goods were supplied as the applicant had met the complainant on many occasions and satisfied him about his bona fide in paying for the goods. In lieu of the goods’ the applicant gave the complainant 4 cheques, of Rs. 12,000/- and odd, Rs. 24,000/- and odd, Rs. 27,000/- and odd and Rs. 43,000/- and odd dated 21.10.2000. These cheques were drawn on a branch of Bank of Baroda, Mumbai.
3. The complainant deposited the said cheques in his account in a branch of Central Bank of India, Varanasi for clearance. However, the cheques were dishonoured as the applicant had asked his bank at Mumbai to stop payment on the cheques. The complainant waited for a long time for the applicant to make payments on the cheques and also contacted him on several occasions on the telephone. But the payments were not made. The complainant even sent a notice on 27.3.2001 to the applicant under Section 138 of the Negotiable Instruments Act. But in pursuance of a conspiracy the applicant did not permit the said notice to be effected on him.Thereafter, the applicant made no efforts to make the payments on the aforesaid amount. The entire actions of the applicant were made with a dishonest intention to procure the goods from him without payment.
4. After examining the complainant under section 200, Cr.P.C. and his witness Iqbal Ahmad under section 202, Cr.P.C., the learned CJM passed the impugned Order dated 28.8.2001 summoning the applicant under Section 420, IPC.
5. It is submitted by the learned Counsel for the applicant that initially it appears that the complainant wanted to file a complaint under Section 138 of Negotiable Instruments Act, but in a mala fide manner he has not done that and instead he has filed the present complaint under section 420 IPC. I think from a reading of the complaint, it is apparent that the complainant has mentioned that he was trying to effect service of the notice on the applicant under section 138 of the N.I. Act after the cheques had been illegally dishonoured, but in a fraudulent manner in Order to cause dishonest loss to the complainant, due to the machinations of the applicant, the notice could not be effected on him. Moreover, a case of bouncing of cheques where section 138 of the N.I. Act could have applied, may also constitute an offence under section 420, IPC, if the facts disclose such an offence.
6. The learned Counsel for the applicant submits that in view of the delay in filing the complaint on 11.5.2001, when the goods were supplied on 4.7.2000, and the cheques issued on 21.10.2000, the proceedings may be quashed. The complaint itself mentions that the complainant was making every effort to secure payments from the applicant for the goods delivered by him, by repeatedly telephoning him and other means. When everything failed he was not left with any option except to file the complaint. Business men are reluctant to file complaints in a hurry, but that does not detract from the genuineness of a complaint when the facts disclose the offence alleged, and delay certainly constitutes no ground for quashing criminal proceedings at the threshold, in such circumstances.
7. It was next submitted that the ingredients of cheating are not disclosed and in any case there was no intention to cheat from the beginning. If a party represents to another that he should effect delivery of goods to him, .and he would pay for the sam
