SUMAN K GUHAROY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant - original accused to quash and set aside the impugned order dated 07.01.2010 passed by the learned Judicial Magistrate First Class, Gandhidham in Criminal Inquiry Case No.11/2010 sending the said complaint for investigation under Section 156(3) of the CrPC as well as to quash and set aside the impugned FIR being M. Case No.7/2010 registered with Gandhidham Police Station for the offences punishable under Sections 406, 409 and 420 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC").

(2.) That respondent No.2 herein - original complainant has instituted one private complaint against the applicant in the Court of learned JMFC, Gandhidham, Kachchh being Inquiry Case No.11/2010, for the offences punishable under Sections 406, 409 and 420 of the IPC alleging inter-alia that he had entered into a transaction/contract with the accused for manufacturing of plant machinery and spare parts and for that he had paid in all Rs.1,54,46,000/- to the accused and the accused supplied only two big plants machineries and spare parts out of three big plants and did not supply the third big plant though the complainant paid a further sum of Rs.16,89,612/- and therefore, it is alleged that by not supplying the third plant and/or not repaying the aforesaid amount of Rs.16,89,612/-, it is alleged that the accused has committed offences punishable under Sections 406, 409 and 420 of the IPC. That the learned JMFC, Gandhidham has passed an order in the said complaint to send the complaint for police investigation under Section 156(3) of the CrPC and thereafter the same is registered as M.Case No.7/2010 registered with Gandhidham Police Station. Hence, the applicant - original accused has preferred the Criminal Miscellaneous Application under Section 482 of the CrPC.

(3.) Shri A.R. Gupta, learned advocate appearing on behalf of the applicant - original accused has vehemently submitted that as such the applicant has not committed any offence as alleged under Sections 406, 409 and 420 of the IPC. It is submitted that as such the dispute is purely of civil nature which is tried to be converted into a criminal dispute by way of filing the impugned complaint which is nothing but abuse of process of law and Court. It is submitted that the averments and allegations in the complaint are as if the complainant has instituted a civil suit. It is submitted that even otherwise on bare reading of the impugned complaint, it does not even disclose prima facie commission of the offences under Sections 406, 409 and 420 of the IPC. It is submitted that as such due to non-payment of the balance amount, the applicant could not supply the third plant. It is further submitted that the fact that out of three major plants to be supplied even as per the averments in the complaint, the applicant did supply two major plants, machineries and spare parts that itself is suggestive that there was no intention on the part of the applicant to cheat and/or deceive the complainant from the very beginning. Therefore, to continue the criminal proceedings against the applicant shall be abuse of process of law and Court and unnecessary harassment to the applicant.