Criminal proceedings initiated after the limitation period for civil recovery constitute an abuse of process and do not disclose any prima facie offence under the IPC.

ORDER :

(J.C. DOSHI, J.) 

By way of these petitions, the petitioners seek to quash FIR registered before Katargam Police Station being C.R. No. I-266 of 2018 for the offences alleged to have been committed and punishable under sections 406, 409 , 420 and 114 of IPC with Katargam Police Station under the provisions of Section 482 of the Code of the Criminal Procedure.

2. The short facts of the case emerging from the FIR are that present complainant was involved in the clothes business and accused persons had purchased the goods from the complainant and for that initially payment was already made. It is further alleged in the FIR that thereafter the accused persons had purchased another goods and through various receipts numbers the goods were supplied and when complainant asked for payment the accused told him to collect the cheque from his office and when the complainant contacted the accused for one or the other reason the accused showed reluctance to make payment and has not paid the money for the purchase of goods and thereby not paid amount of Rs.13,86,374/-. Thus, the accused persons with the connivance of each other purchased the goods by winning confidence of the complainant and thereafter did not make payment thereof and committed the offence.

3. Heard learned advocates appearing for the parties.

4. Learned advocates for the petitioners taking this Court through the FIR would submit that it is purely commercial transaction between the parties whereby certain goods have been sold by the first informant to the accused with the promise that after 90 to 120 days amount shall be paid. Learned advocate for the petitioner would submit that this is a commercial transaction and there is a delay of seven years in the lodgment of the FIR and therefore this is nothing but abuse of process of law. Learned advocate for the petitioner would submit that if the FIR is taken at face value, it does not constitute the offence against the petitioner and therefore he would submit to allow this petition by quashing and setting aside the FIR.

5. Learned advocate for the first informant would submit that prima facie offence alleged in the FIR is made out as the petitioners purchased the goods from the complainant by winning his confidence as initially the goods were purchased and payment was made and thereafter the goods were purchased but no such payment was made and thus petitioner committed cheating with the complainant and therefore this Court may not exercise the discretion in favour of the petitioners. In support of his submissions, he would rely upon the decision rendered in CR.MA No.16474 of 2017 dated 22/04/2019 where in similar such circumstances, the co-ordinate Bench has not exercised the discretion in favour of the accused and therefore he would submit to dismiss the present petition.s

6. Learned APP while referring to the investigation papers would submit that petitioner purchased the goods and have not returned the money by not fulfilling his promise as previously petitioner made payment for purchase of goods and thereby win the confidence of the complainant and therefore it is submitted that since the petitioner played vital role in commission of the offence, this Court may not entertain the petition.

7. Having heard the learned advocates for the parties and perusing the FIR in question what could be noticed that org. complainant sold the goods in the form of clothes to the petitioners who gave assurance of making payment within 90 to 120 days and and when persons had gone to recover the money accused persons by showing one or the other reason did not return the amount of goods purchased by them. Thus, the goods were purchased by the petitioner by giving assurance to make payment within 90 to 120 days and when complainant side went to take their money back it was not made. Under the circumstances, it is hard to believe that present petitioner has committed any offence as alleged in the FIR. To be noted further that, FIR is lodged after