Date : 10/02/2012 1. Present petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, has been preferred by the petitioner herein – original accused to quash and set aside the impugned complaint being Criminal Case No. 5513 of 2005 filed by the respondent No.2 herein – original complainant, in the court of Judicial Magistrate (First Class), Bhavnagar, for the offences punishable under sections 420 and 406 of Indian Penal Code and further proceedings thereto,
2. That the respondent No.2 herein – original complainant has filed the impugned complaint being Criminal Case No.5513 of 2005, which was initially numbered as Inquiry Case No.200 of 2005 filed against the petitioner - original accused for the offences punishable under sections 420 and 406 of Indian Penal Code alleging inter-alia that the petitioner was introduced by one Devubhai Babubhai Chauhan, manager of Shihor Nagrik Bank and the complainant was told that the petitioner had immediate need of Rs.1 Lac and therefore, the manager requested the complainant to help the petitioner and at the relevant time the petitioner gave trust, assurance and promise that he will repay the said amount within a period of one year. It is further alleged that at the relevant time, the complainant was not having any sufficient fund in his bank account and therefore, he paid the said amount from the bank account of his wife and the said cheque was drawn in the name of Krishna Steel Rolling Mill. It is further alleged that thereafter only a sum of Rs.23,295 was paid by way of interest etc. It is further alleged in the complaint that thereafter the complainant came to know that the complainant and his family have closed the business and left Rajkot and have not paid the amount which was promised to be paid at the time of taking finance and the same is used for himself. Therefore, it is alleged that the accused has committed offence under section 420 and 406 of Indian Penal Code. It appears that thereafter the learned Magistrate passed order for inquiry under section 202 of the Code of Criminal Procedure and thereafter, after considering the statement/deposition of the complainant as well as his witnesses examined at Ex.4 and having found prima facie case, the learned Magistrate has directed to register the said complaint and issue process against the petitioner for the offences punishable under sections 420 and 406 of Indian Penal Code. Hence, Being aggrieved by and dissatisfied with the impugned complaint, petitioner herein has preferred the present petition under Article 227 of the Constitution of India read with sec.482 of the Code of Criminal Procedure.
3. Mr.S.P. Majmudar, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such the petitioner has not committed the offences punishable under sections 420 and 406 of Indian Penal Code, as alleged. It is further alleged that as such even as per the complaint, the cheque was issued in favour of Krishna Steel Rolling Mill and so far as the petitioner is concerned, he is not the Partner of Krishna Steel Rolling Mill in whose favour the cheque was issued. In support of his above submission, he has relied upon the Partnership Deed of Krishna Steel Rolling Mill. It is further submitted that even otherwise at the most it can be said that the dispute is of civil nature for which the complainant is required to file a Civil Suit for recovery of suit amount that too against Krishna Steel Rolling Mill. Therefore, it is requested to quash and set aside the impugned complaint in exercise of the powers under section 482 of the Code of Criminal Procedure.
4. Present petition is opposed by Mr.Tolia, learned advocate appearing on behalf of the original complainant. It is submitted that the averments and allegations in the complaint discloses prima facie commission of cognizable offences, more particularly for the offences punishable under sections 420 and 406 of Indian Penal Code. It is submitted that on holding the inquiry under section 202 of the Code of Criminal Procedure and having prima facie satisfied, the learned Magistrate has directed to issue process against the petitioner - accused for the offences punishable under sections 420 and 406 of Indian Penal Code which is not required to be interfered with by this Court in exercise of powers under Section 482 of the Code of Criminal Procedure. It is submitted that as such it was the petitioner who gave trust, assurance and promise to repay the amount and relying on the trust, assurance and promise given by the petitioner accused, the complainant advanced the amount, however, the amount has not been repaid and therefore, this is a clear case of cheating and breach of trust. It is submitted that it cannot be said that the petitioner has nothing to do with the Krishna Steel Rolling Mill, in whose favour the cheque was issued. It is submitted that as such the father of the petitioner was the Partner of the Krishna Steel Rolling Mill and even thereafter he became sole proprietor. Therefore, it is submitted that it cannot be said that the petitioner has nothing to do with the said Krishna Steel Rolling Mill. By making above submissions it is requested to dismiss the present petition.
5. Mr.Dabhi, leanred Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
6. Heard the learned advocates appearing on behalf of the respective parties at length and considered averments and allegations made in the complaint as well as the order passed by the learned Magistrate directing to register the complaint and issue process against the petitioner - accused for the offences punishable under sections 420 and 406 of Indian Penal Code. Considering the averments and allegations made in the impugned complaint, it appears that it discloses prima facie commission of cognizable offences punishable under sections 420 and 406 of Indian Penal Code and there are specific averments and allegations in the impugned complaint that it was the petitioner who gave trust, assurance and promise to repay the amount within a period of one year and relying on the said trust, assurance and promise, the complainant advanced the amount from the bank account of his wife and when the said amount is not repaid, it is alleged that the petitioner has committed offence of breach of trust and cheating. That after holding necessary inquiry under section 202 of the Code of Criminal Procedure and after having found prima facie case against the petitioner - accused, when the learned Magistrate has directed to issue process against the petitioner for the offences punishable under sections 420 and 406 of Indian Penal Code, the same is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure.
7. Now, so far as the contention on behalf of the petitioner that the cheque in question is issued in favour of Krishna Steel Rolling Mill and the petitioner was not the partner of the said Krishna Steel Rolling Mill and the petitioner has nothing to do with the said Krishna Steel Rolling Mill and therefore, the impugned complaint is required to be quashed and set aside is concerned, it it required to be noted that the father of the petitioner - accused was the Partner of the said Krishna Steel Rolling Mill and thereafter he became sole proprietor. Considering the facts and circumstances of the case, it cannot be said that the petitioner has nothing to do with the said Krishna Steel Rolling Mill. Even otherwise, it is required to be noted that there are specific averments and allegations with respect to trust, assurance and promise given by the petitioner and relying on the same, the complainant had advanced the amount to the petitioner. Considering the same and facts and circumstances of the case, the contention on behalf of the petitioner to quash and set aside the impugned complaint on the said ground cannot be accepted.
8. At this stage it is required to be considered whether there is any prima facie case against the petitioner - accused for which the petitioner is required to be tried or not. As per the settled proposition of law, at this stage this Court is not required to consider whether the petitioner - accused is likely to be convicted on the basis of the material on record or not. Considering the facts and circumstances of the case, no case is made out to quash and set aside the impugned complaint in exercise of the powers under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure.
9. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. No costs.
rafik [M.R. SHAH, J.]