PRAKASH PANNALAL Vs. NALINI DHOLKIA

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure 1973 (hereinafter referred to as "the Code") has been filed by the petitioners for quashing Criminal Case No.1618/02 instituted upon complaint filed by the respondent, alleging commission of offence under Section 420 read with Section 34 of the IPC against the petitioners.

(2.) Relevant and brief facts giving rise to this petition are that the respondent/complainant had placed order for supply of Hydraulic Pipe Bending Machine with the petitioners. Dispute arose between the parties with regard to supply of the ordered machine. This led to filing of a criminal complaint by the respondent on 4.6.1996 against the petitioners in the Court of Judicial Magistrate 1st Class Raipur. The complainant alleged commission of offence under Section 420 read with Section 34 of the IPC. In support of complaint, complainant examined Shankar Gupta and Vipin Chandra Kothari, whose preliminary statements were recorded by the Magistrate. Considering the complaint and the preliminary statements, Magistrate found that a prima facie case of commission of offence under Section 420 read with Section 34 is made out, whereupon, cognizance was taken and summons were directed to be issued vide order dated 9.5.1997. The petitioners moved application on 6.8.1997 for dismissal of the complaint, which application was rejected on 23.7.2002 by the learned Magistrate. Thereafter, the petitioners approached this Court by filing instant petition for quashing criminal proceedings instituted upon complaint.

(3.) Learned counsel for the petitioners contended that the entire proceedings instituted upon complaint are gross abuse of the process of law, as the complaint has sought to convert a pure civil dispute, arising out of alleged breach of contract, into a criminal case of cheating. Learned counsel for the petitioners submitted that even if the complaint along with preliminary statements of complainant witnesses and established circumstances are taken as it is and accepted in its entirety, ingredients of cheating are not made out and on the contrary, complaint taken as a whole, only makes out a case of breach of contract. He further submits that in fact, the complainant has also taken recourse to civil remedy by filing civil suit which has been instituted on 14.5.1998, registered as Civil Suit No.15-B/01 and decreed in favour of the complainant, vide judgment and decree dated 8.4.2003, wherein, the Court has decreed an amount of Rs.70,000/- along with interest against the petitioners and in favour of the complainant. Learned counsel for the petitioners urged that in the complaint, there is nothing to show that there was an intention to cheat at the very inception when the advance was paid and orders were placed for supply of Hydraulic Pipe Bending Machine. In his submission, disputes arose between the parties and while the case of the petitioners has been that full advance amount was not paid, respondent blamed that the machine was not manufactured and supplied within the time stipulated and when machines was manufactured and thereafter inspected by the complainant, it was not found as per their specification, which led to dispute. It is urged that these facts, stated in the complaint, taken in its totality and accepted as it is, only establish that the machine was not found as per the specification and the complainant was not satisfied with the manufactured items, therefore, at the most it could be a case of breach of contract and in respect of which, a decree has already been passed in favour of the complainant. In support of his contention, learned counsel for the petitioners relied upon the decisions of Supreme Court in the cases of Ram Jas Vs. State of U.P., 1970 2 SCC 740 State of Kerala Vs. A. Pareed Pillai and another, 1972 3 SCC 661 Anil Kumar Bose Vs. State of Bihar, 1974 4 SCC 616 G. Sagar Suri and another Vs. State of U.P. and Ors., 2000 2 SCC 636 Hridaya Ranjan Prasad Verma and Ors. Vs. State of Bihar and another, Murari Lal Gupta Vs. Gopi Singh, 2005 13 SCC 699 V.P. Shrivastava Vs. Indian Explosives Ltd. and Ors.7, Geeta Vs. State of U.P. and another, 2010 10 SCC 361 M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd. & Ors., 2006 6 SCC 736 Harshendra Kumar D. Vs. Rebatilata Koley and Ors., 2011 3 SCC 351