1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants have approached this Court for quashing the criminal complaint being Criminal Case No.3255 of 2000 filed by respondent No.1 in the Court of Metropolitan Magistrate, Court No.9, Ahmedabad.
2. It is the case of the applicants that the complaint is maliciously filed and averments made in the complaint did not make out any offence against the applicants under Section 138 of the Negotiable Instruments Act. The applicants have further stated in the application that cheques in question were given towards security and not to satisfy the debt. The applicants have come out with the case that after receipt of Rs.10 lacs from respondent No.1-complainant, the goods were already delivered and in fact, the applicants were to recover the amount from respondent No.1- complainant. It is the further say of the applicants in the application that respondent No.1-complainant has already filed Summary Civil Suit and since no case for initiation of criminal proceedings under Section 138 of the Negotiable Instruments Act is made out by the complainant, the criminal complaint filed against the applicants is required to be quashed by exercising powers under Section 482 of the Code of Criminal Procedure.
3. This application is opposed by respondent No.1-complainant by filing reply and it is stated therein that the cheques given by the applicants were towards non-payment of the dues for which Rs.10 lacs were outstanding against the applicants. Respondent No.1 had categorically denied the assertion of the applicants to the fact that the cheques were given towards security.
4. The applicants have now produced on record the copy of order passed by the Court below in Summary Suit No.406 of 2002 permitting the applicants to defend the suit unconditionally.
5. I have heard learned advocates for the parties.
6. Learned advocate for the applicants has submitted that contents of the complaint filed by respondent No.1 do not make out any offence against the applicants under Section 138 of the Negotiable Instruments Act. It is further argued by the learned advocate for the applicants that pursuant to the understanding between the parties, the applicants had already fulfilled their part of obligation by supplying the goods more than the value of Rs.10 lacs paid by the respondent No.1. Learned advocate has pointed out that in the civil suit filed by respondent No.1, the Civil Court has found strong prima facie case in favour of the applicants and having examined in detail the defence of the applicants, the Civil Court has found that there are triable issues and, therefore, unconditional leave was granted. He, therefore, urged that considering the order passed by the Civil Court, it clearly appears that the complaint filed against the applicants is maliciously filed though the applicants have not committed any offence. He submitted that the transaction between applicants and respondent No.1 is of civil nature and since the cheques were given to respondent No.1 were for security purpose only and not to pay any dues of respondent No.1, this Court should exercise its powers under Section 482 of the Code and quash the complaint.
7. As against the above arguments of the learned advocate for the applicants, learned advocate for respondent No.1-complainant has stated that what is stated in the application is nothing but a defence of the applicants. Whether the cheques were given towards the security or to discharge the debt is a matter of fact to be proved by the applicants in the trial. He has further argued that simply because the Civil Court has granted unconditional leave to the applicants, that would never mean that the applicants have not committed any offence under Section 138 of the Negotiable Instruments Act. He pointed out that the consideration of question about grant of leave to defend in a summary suit is on the basis of some triable issues in defence to summary suit. Therefore, if the Civil Court has found at this stage that there are some triable issues available in the suit filed by respondent No.1, that by itself is no ground to quash the complaint.
8. Learned A.P.P. Mr.Dave submitted that the applicants have not made out any case for quashing of the complaint. What is stated by the applicants is a defence of the applicants and this Court while exercising powers under Section 482 of the Code of Criminal Procedure, would not like to consider defence of the applicants. He further pointed out that the complaint filed by respondent No.1 clearly discloses the offence committed by the applicants under Section 138 of the Negotiable Instruments Act. He ultimately urged that since the applicants have not made out any case for exercising of inherent powers by this Court, the application filed by the applicants is required to be dismissed.
9. Having heard learned advocates for the parties and having perused the documents on record, I am of the opinion that the applicants have not made out any case so as to exercise inherent powers in their favour under Section 482 of the Code. The applicants have, in their application, put forth the defences which are available to the applicants at the time of trial. The first ground urged on behalf of the applicants is to the effect that the applicants had already supplied the goods after receipt of Rs.10 lacs from respondent No.1. The complainant has clearly stated that after taking Rs.10 lacs by the applicants, the applicants never supplied the goods as stated by them. Therefore, this is highly disputed fact as asserted by the applicants and this cannot be a ground to quash the complaint. The learned advocate for the applicants contended that the cheques were given towards the security and not towards discharge of debt. The applicants have not placed on record any evidence to establish that the cheques were given for security purpose only and not for discharge of any debts. Therefore, this Court on this ground also, cannot exercise powers under Section 482 of the Code to quash the complaint. Lastly, the contention that since the applicants have already been granted leave to defend by the Civil Court, there is a strong prima facie case in favour of the applicants and, therefore, criminal proceedings cannot be continued, cannot be accepted. Civil and criminal proceedings both are permissible if the cause for both proceedings, is made out from one transaction. Presently, suit is pending. Leave to defend is always granted when the Civil Court finds that there are some triable issues raised by the applicants. This by itself is no ground to quash the complaint.
10. In the opinion of this Court, the applicants have not made out any case for quashing of the complaint. This Court, therefore, would not like to exercise its inherent powers under Section 482 of the Code.
11. The application is, therefore, dismissed. Rule is discharged.
(C.L. SONI, J.) Hitesh