1. The present Criminal Misc.Application u/s.482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused to quash and set aside the impugned Criminal Case No.1916 of 2008 pending in the Court of learned Judicial Magistrate, First Class, Mahesana as well as the order dated 29/03/2008 passed by learned Judicial Magistrate, First Class, Mahesana, by which, the learned Magistrate has directed to issue process against the applicant herein – original accused for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code.
2. Respondent No.2 herein – original complainant has filed the impugned complaint being Inquiry Case No.61 of 2007 against the applicant herein and others in the Court of learned Judicial Magistrate, First Class, Mahesana for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code alleging inter alia that the applicant herein – owner of Dairy Den Limited has entered into agreement dated 19/12/2003 with respondent No.2 herein – original complainant by which the complainant agreed to supply the milk to the said Company and the Company agreed to make payment as per the said agreement. It was further alleged that
Rs.7,85,722.88 is due and payable to the complainant. It is further alleged that with a view to see that the aforesaid amount is not paid to the complainant and with a malafide intention, the Company was closed and therefore, it is alleged that the applicant and other accused have committed an offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. That the learned Judicial Magistrate, First Class, Mahesana sent the said complaint for inquiry u/s.202 of the Code of Criminal Procedure and directed the P.S.I., Santhal Police Station to submit the report after investigating the said complaint. It appears that thereafter the concerned Investigating Officer submitted the report and considering the said report, the learned Magistrate has passed the impugned order directing to issue process against the applicant herein and others for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. Being aggrieved by and dissatisfied with the impugned complaint as well as the order passed by learned Magistrate directing to issue process against the applicant herein and others for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code, the applicant herein – original accused No.1 has preferred the present application u/s.482 of the Code of Criminal Procedure.
3. Mr.Manav Mehta, learned advocate appearing on behalf of the applicant herein has vehemently submitted that as such the applicant has not committed any offence as alleged. It is further submitted that as such the Company was not closed with a view to dupe the complainant and/or with a view to see that the amount due and payable to the complainant is not paid. It is further submitted that as such looking to the weak financial condition of the Company, the Company was closed by the Bank/Creditors in exercise of powers conferred under the Securitisation Act. It is submitted that as such therefore the allegation that the Company was closed only with a view to dupe the complainant, cannot be accepted. Even otherwise on bare reading of the impugned complaint, averments and allegations in the complaint as it is, no case is made out against the applicant herein for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. It is submitted that it is not a case on behalf of the complainant that not a single amount has been paid by the Company. It is submitted that even in the report submitted by the Investigating Officer, it is specifically mentioned that Rs.1,25,000/- was paid on 04/05/2004; Rs.61,766/- was paid on 25/05/2004; Rs.60,000/- was paid on 31/05/2004 and Rs.75,341/- was paid on 07/11/2004. It is submitted that as such due to weak financial condition of the Company, the balance amount could not be paid to the complainant. It is submitted that only by not making the full payment, it cannot be said that the applicant has committed an offence of cheating as alleged. It is further submitted that as such there was no allegation and averment in the complaint that intention of the company and the applicant was to deceive the complainant from the very beginning i.e. at the time of agreement dated 19/12/2003.
Mr.Manav Mehta, learned advocate appearing on behalf of the applicant herein has relied upon the decision of the Hon'ble Supreme Court in the case of Inder Mohan Goswami and another V/s. State of Uttaranchal and others reported in 2008(1) GLH 603 and requested to quash and set aside the impugned complaint as well as to quash and set aside the impugned order passed by learned Judicial Magistrate, First Class, Mahesana directing to issue process against the applicant herein and others for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code.
4. Mr.Y.M.Thakore, learned advocate has appeared on behalf of respondent No.2 herein - original complainant and has initially tried to oppose the present application. However, subsequently he has stated at the bar that he does not invite any further reasoned order while quashing and setting aside the impugned complaint as well as the impugned order passed by the learned Trial Court. However, he has requested to make suitable observation that the same shall be without prejudice to the rights and contentions of the complainant as well as prosecution against the other accused persons and they may be tried in accordance with law and on merits.
5. In view of the above stand taken by Mr.Y.M. Thakore, learned advocate appearing on behalf of the complainant as recorded hereinabove, this Court is not further assigning any other reasons while quashing and setting aside the impugned complaint as well as the impugned order passed by the learned Trial Court directing to issue process against the applicant herein – original accused.
6. Under the circumstances and in view of the above, the application succeeds. The impugned Criminal Case No.1916 of 2008 pending in the Court of learned Judicial Magistrate, First Class, Mahesana as well as the order dated 29/03/2008 passed by learned Judicial Magistrate, First Class, Mahesana directing to issue process against the applicant herein – original accused for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code are hereby quashed and set aside. However, the same shall be without prejudice to the rights and contentions of the original complainant as well as prosecution against other accused persons and the learned Trial Court to proceed further with the trial in accordance with law and on merits and without in any way being influenced by the present order, expeditiously. Rule is made absolute to the aforesaid extent.
7. Registry is directed to return records and proceedings of the aforesaid Criminal Case to the learned Trial Court immediately.
*dipti [M.R.SHAH,J]