PROBIR GHOSH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners are the original accused of Criminal Case No. 769/90 of the Court of Metropolitan Magistrate, Ahmedabad. Respondent No. 2 original complainant filed complaint against the petitioners accused on March 21, 1990. The complainant alleged that he was carrying on busi ness as sole proprietor in the name of Tapama (India) Laboratories at Ahmedabad; that he was dealing in sales and purchase of different chemical materials; that accused were also dealing in the same articles; that accused were in charge of the affairs of the company called Ortho Pharma Private Limited; that the accused had placed orders of different chemical materials by representing and making and giving an explicit undertaking, promise and assurance to the complainant that they would first give a trust and promise in writing of having accepted the Hundi for the value of the invoice of goods to be delivered to them and a promise and acknowledgment that they would deposit in their Bank within a period of 90 days i.e. period of maturity of the Hundi instrument the amount of value of the price and amount of the invoice. It is further alleged that as the accused made representations as above, the complainant was in duced to deliver goods of the value of Rs. 2,83,718.40 ps. as mentioned in para 4 of the complaint. It is further alleged that the accused received the delivery of the goods, but did not honour the hundies. In para 5 of the complaint, it is specifically averred as follows :

(2.) On the basis of these allegations, it was alleged that the accused had committed offence under Section 430 read with Sections 34 and 114 of IPC. When the complaint was filed, the learned Magistrate examined the complainant on the same day. The complainant stated in his examination that the accused had given assurance and promise that the hundies of 13 bills will be honoured and that on the basis of such assurances, he was induced to deliver the goods but when the hundies were pre sented before the Bank, the same were not honoured. Even till the date of the tiling of the complaint and the examination of the complainant, the amount was not paid. It was further stated by the complainant that the accused has committed offence of cheating. The learned Magistrate ordered to issue bailable warrant for the sum of Rs. 1000/- for the offence under Section 420 read with Sections 34 and 114 of the IPC.

(3.) The petitioners original accused have filed this application under Section 482 of the Code of Criminal Procedure praying that the process issued by the learned Magistrate in Criminal Case No. 769/90 be quashed and set aside.