PUNJAB TYRE HOUSE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an application filed under section 482 of the Code of Criminal Procedure, 1973 for quashing criminal case No.96/2002 filed by respondent no.2, herein, against the petitioners for offences punishable under section 138 of the Negotiable Instrument Act, 1881 as well as for the offences punishable under section 420, and 406 of IPC before the learned Metropolitan Magistrate, Court No.15, Ahmedabad City. The facts of the case of the said criminal case No.96/2002 may be briefly stated as follows:

(2.) That, petitioner No.1 is a registered partnership firm and petitioners no.2 and 3 are the partners thereof. It is alleged in the complaint before the trial court that petitioners no.2 and 3 herein together and with the help of each other are running business in the name and style of petitioner no.1. It is also alleged in the complaint that petitioners no.2 and 3 are carrying on business of sale of tyres and allied products from their business premises as mentioned in the complaint. It is further alleged in the complaint that petitioners no.2 and 3 approached the Ahmedabad branch office of respondent no.2 sometime in July, 1999 and presented themselves as sellers of products such as those of the complainant and asked that the complainant should sell its products through their business. Ultimately, a contract was entered into and sale was made. It is further alleged in the complaint that despite the delivery of goods, payment was not made regularly. It is alleged that at the first instance, payment was made but thereafter payments were not made but cheques were issued by petitioner No.1 and signed by the second petitioner. However, the cheques were dishonoured when presented to the bank concerned. Therefore, there is allegation that the petitioners herein have committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') It is further alleged that the present petitioners have adopted a modus operandi designed and crafted to cheat the complainant and the entire chain of events shows that the accused did not have either resources or intention to make the payment to the complainant, even though under the terms and conditions, issuance of cheques against delivery of goods was agreed to by the accused. It is further alleged in the complaint that it was the intention of the accused to cheat the complainant and induce the complainant to part with the valuable goods. It is, therefore, contended that by such inducement, the contesting respondents have delivered the goods and thereafter, the cheques issued were not honoured and, therefore, payments could not be realised and, therefore, according to the case of the original complainant, the complainant was cheated by the aforesaid action on the part of the petitioners. Therefore, offence punishable under section 420 of IPC has also been alleged against the petitioners.

(3.) On receipt of the aforesaid complaint, the learned Magistrate recorded verification of the complainant on oath and thereafter, he directed that the complaint be registered and process be issued for offences punishable under section 138 of the Act and for the offence punishable under section 420 read with section 114 of IPC. Feeling aggrieved by the said order of the learned Magistrate, the applicants herein have preferred this application before this Court. It has been mainly contended here that since several cheques said to have been issued by the petitioners, the trial court could not have issued process for more than three offences as indicated in section 219 of the said Code. It is further contended that the cheques were invalid as they were presented after the due date. It is also contended that there was some overwriting with respect to the dates for the issue of cheques and, therefore, such cheques could not have been considered by the trial court for any purpose. It is further contended that petitioners no.2 and 3 were not responsible and liable to answer the complaint as there was no allegation in the complaint that they were responsible and liable for the alleged offence even on the date of which the offence was allegedly committed. It is further contended that the amount stated in the cheques were not due on the date of the cheques and, therefore, no offence can be said to have been made out against the petitioners. It is, therefore, contended that the learned Magistrate has committed grave error in issuing process after registering the complaint against the petitioners. That therefore, since no offence has been made out, the present application may be allowed and the aforesaid criminal case filed against the petitioners be quashed and se aside.