LALITBHAI BHANUBHAI LIMBASIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner herein, has preferred this revision application u/s.397 read with s.401 of the Code of Criminal Procedure, 1973 (for short, "the Code") in order to challenge an order dated 16/12/2000 recorded by the learned J.M.F.C., Dakor in Criminal Case No.58/1998 under which the learned Magistrate dismissed the said application of the present petitioner, original accused, in the said criminal case, for his discharge from the offences punishable as aforesaid.

(2.) The second respondent herein, being the original complainant, filed a complaint before the learned J.M.F.C. at Dakor stating that the second respondent was a manufacturer of fertilizers in the name of "Nicko Agro Manufacturers" at Dakor; that, the present petitioner used to purchase fertilizers from the second respondent and used to sell it in the name of Ganesh Baya Seeds at Gondal; that, the petitioner used to purchase fertilizers on credit and used to pay for the same; that in 1996-97 similar transactions were entered into between the parties and on the settlement of accounts, it was noticed that an amount of Rs.1,03,767/- was due to the second respondent by the petitioner and therefore, the petitioner issued a cheque on 01/07/98 for the aforesaid amount. The cheque was entrusted to the second respondent having a date of 31/08/98; that, the petitioner had given an assurance that the cheque would be encashed on due date; that accordingly, the cheque was presented to the bank on 31/08/98, but, it was dishonored on 03/09/98, on account of "insufficient balance". The second respondent contacted the petitioner who assured that the said amount would be paid within two days; that, ultimately, the amount was not paid, despite Notice u/s.138 of the Negotiable Instruments Act, 1881 (for short, "the Act"); that, therefore, the petitioner purchased the goods on credit, issued cheque for the value of goods and assured that the cheque would be honored. But, ultimately, the cheque was not honored and the amount was not paid and thereby, the petitioner committed offences of cheating and criminal misappropriation punishable u/s.406 and 420 of IPC.

(3.) On the strength of the aforesaid complaint, on 09/12/98, the learned Magistrate referred the said complaint to the police station, for investigation u/s.156(3) of the said Code. After investigation, the police investigating agency submitted chargesheet before the trial court. At the stage of framing of charge, the petitioner submitted an application before the trial court at Ex.3 stating that no offence was made out and therefore, no charge was required to be framed and therefore, the petitioner be discharged. After hearing, the learned Magistrate found that it was not a case for discharge and therefore, the learned Magistrate dismissed the said application of the petitioner by order dated 16/12/2000.