RAJKUMAR Vs. JITENDRA RATHI

JUDGEMENT

(1.) AS per the office report dated 01.07.2009, respondent was served. As per the contents of the complaint, accused/petitioner herein has hired the truck of the complainant from August, 2004; despite repeated demands, petitioner failed to make payment, for hiring of the truck, to the transporter/complainant; cheque issued by the petitioner/accused was also dishonoured for which complaint under Section 138 Negotiable Instrument Act was filed; on the one hand petitioner is not paying the hiring amount yet, on the other hand complainant has been paying installments of truck to the financer, therefore, petitioner has cheated the complainant by not paying hiring amount. Hon'ble Apex Court in the case of Mahesh Chaudhary v. State of Rajasthan and another reported in : 2009 (2) SCC (Cri), 332held that in every case of forgery and fraud, there would always be element of civil nature.

(2.) HON 'ble Apex Court in the case of S. W. Palanitkar v. State of Bihar and another reported in : 2002 (1) SCC, 241 in paragraph No. 23 has held as under:

(3.) AS per the dictum of Hon'ble Apex Court as reported herein before, learned Magistrate while exercising jurisdiction under Section 202 of Code of Criminal Procedure should satisfy himself as to whether a pure civil dispute has been given colour of the criminal offence to settle the score and to victimize the accused/other parties of the agreement, with a view to realize money at the earliest This Court, while examining the summoning order, ordinarily, should be slow in making interference with the summoning order; however, if this Court, having examined the entire material available on the record and settled principles of law, comes to the conclusion that on the face of it, civil dispute has been given colour of the criminal offence to settle the score and to victimize the other party of the agreement and on the face of it offence of cheating is not made out, this Court must come forward to quash the criminal proceedings.