2003 Supreme(Guj) 498

Gujarat High Court
Judgename :D.P.Buch
LALITBHAI BHANUBHAI LIMBASIA - Appellant
Versus
STATE - Respondent
CRIMINAL REVISION APPLICATION 85 of 2001
Decided On : 09/03/2003

Headnote:

Code of Criminal Procedure, 1973 –Section 401,406 –Indian Penal Code Negotiable Instruments Act, 1881 –Section 138 -Petitioner herein, has preferred this revision application in order to challenge an order recorded by the learned in Criminal Case No. 58/1998 under which the learned Magistrate dismissed the said application of the present petitioner, original accused, in the said criminal case, for his discharge from the offences punishable as aforesaid. respondent herein, being the original complainant, filed a complaint before the learned stating that the second respondent was a manufacturer of fertilizers in the name of "nicko Agro Manufacturers" that, the present petitioner used to purchase fertilizers from the second respondent and used to sell it in the name of Ganesh Baya Seeds that, the petitioner used to purchase fertilizers on credit and used to pay for the same; similar transactions were entered into between the parties and on the settlement of accounts, it was noticed that an amount of Rs. 1,03,767/- was due to the second respondent by the petitioner and therefore, the petitioner issued a cheque for the aforesaid amount. The cheque was entrusted to the second respondent having a date ; that, the petitioner had given an assurance that the cheque would be encashed on due date; that accordingly, the cheque was presented to the bank, but, it was dishonored, on account of "insufficient balance". The second respondent contacted the petitioner who assured that the said amount would be paid within two days; that, ultimately, the amount was not paid, despite Notice u/s. 138 of the Negotiable Instruments Act, 1881 that, therefore, the petitioner purchased the goods on credit, issued cheque for the value of goods and assured that the cheque would be honored. But, ultimately, the cheque was not honored and the amount was not paid and thereby, the petitioner committed offences of cheating and criminal misappropriation punishable. the strength of the aforesaid complaint, the learned Magistrate referred the said complaint to the police station, for investigation u/s. 156 (3) of the said Code. After investigation, the police investigating agency submitted chargesheet before the trial court. At the stage of framing of charge, the petitioner submitted an application before the trial court at Ex. 3 stating that no offence was made out and therefore, no charge was required to be framed and therefore, the petitioner be discharged. After hearing, the learned Magistrate found that it was not a case for discharge and therefore, the learned Magistrate dismissed the said application of the petitioner by order -Held above discussion makes it clear that so far the offence punishable u/s. 406 IPC is concerned, it cannot be said to have been made out, as there was no case of entrustment of any property. So far the offence punishable u/s. 420 IPC is concerned, it also cannot be said to have been made out in absence of a case of inducement at the time when the contract of sale and purchase took place. Mere nonpayment is not sufficient to hold even prima facie that there is a case of cheating. Same way, bouncing of cheque will not be sufficient to infer a case of inducement. In above view of the matter, when these two offences have not been prima facie made out, then there is no reason, as to why the prosecution should proceed ahead against the petitioner. In that view of the matter, when no offence is made out, the petitioner was required to be discharged by the trial court. The trial court has not considered this aspect of the case and therefore, the order of the trial court dismissing the application of the petitioner for his discharge, has to be held to be illegal and consequently, it would be necessary for this Court to interfere with the said order, at this stage, in this revision application. FOR the foregoing reasons, this revision application is allowed. The impugned order passed by the learned J. M. F. C. in Criminal Case No. 58/1998 dismissing the application of the petitioner for his discharge from the said case is ordered to be set aside and the petitioner is ordered to be discharged from the offences punishable u/s. 406 and 420 of IPC in the said case. Rule is made absolute accordingly –Petition is Dismissed.