NITYANAND A SHETTY Vs. VIKRAM JAYANTILAL BANGDIWALA

JUDGEMENT

(1.) The petitioner in this matter is the original accused in case No. 108/S of 1980 on the file of the Court of Metropolitan Magistrate, 22nd Court, Andheri, Bombay (for brevitys sake the petitioner herein is referred to as "the accused"). Being aggrieved by the proceedings in the said case, the petitioner has filed the present petition for quashing and/or setting aside the said proceedings.

(2.) It is the case of one Vikram Jayantilal (for brevitys sake hereinafter referred to as "the complainant") that he carries on business in the firm name and style of Bharat Distributors. That his firm deals in oils. That on the 3rd of July, 1980 he received a telephone-call from the accused. That the accused told him that he was an officer from the Indian Airlines and that the complainant should supply 200 tins of Postman Brand Refined Groundnut Oil to the Indian Airlines Canteen. That the accused had agreed to make payment for the goods against delivery. That on the 4th of July 1980, he, the complainant supplied 109 tins. That on the 10th of July, 1980 he supplied another 91 tins. That on the 10th of July, 1980 he, the complainant furnished a consolidated bill for 200 tins. That on that very day the accused gave a post-dated cheque. That on seeing this post-dated cheque the complainant was taken aback for, he thought that he was dealing with Indian Airlines and not with the accused individually. That on the very next day i.e. on the 11th of July, 1980 the complainant wrote to the Manager of the Indian Airlines, Old Airport, that the accused had telephoned to M/s. Bharat Distributors, stating that "he was of Indian Airlines Canteen and that Bharat Distributors should supply 200 tins of refined Postman G. N. Oil. That Bharat Distributors presumed that the call was from the Indian Airlines itself and accordingly had supplied 200 tins of oil. That when they received the post-dated cheque from the said Shetty, they made enquiries only to learn that the said Shetty was a contractor of the Indian Airlines Canteen and that he was about to leave this contract work within a short time. That Bharat Distributors were therefore, Doubtful whether the cheque given by the accused could be encashed and that Indian Airlines should assists Bharat Distributors to see that their dues are recovered. "That on the 30th of August, 1980 Bharat Distributors filed a suit in the Bombay City Civil Court at Bombay, being Summary suit No. 4780 of 1980 against the Indian Airlines (Who was the 1st defendant) and the accused (as the 2nd defendant). In this suit Bharat Distributors claimed the price of the goods from Indian Airlines and in the alternative from 2nd defendant i.e. the accused. After the filing of the suit Bharat Distributors adopted proceedings for attachment before judgement and pursuant to a warrant issued, Bharat Distributors proceeded to attach the movables belonging to the accused and lying in the canteen of the Indian Airlines. However, it was discovered at that time that the accuseds contract with the Indian Airlines had already terminated and no execution was hence levied. That Bharat-Distributors then made enquires and learnt that the accused had entered a contract with the Shipping Corporation of India. That they hence obtained another warrant for attachment before judgement. That on the 26th of September, 1980 they attached the moveables of the accused lying and being in the canteen of the Shipping Corporation of India. That on the 21st of October, 1980 the accused applied for raising of the attachment, inter alia, contending that an aggregate of about Rs. 4,00,000/- was due to him by the Shipping Corporation of India and Indian Airlines put together. On the 29th of October, 1980 this attachment before judgement proceedings were heard when a statement was made on behalf of the accused that he will not recover a sum of Rs. 45,000/- lying with the Indian Airlines. On this statement being made the Court was pleased to raise the attachment. That a Summons for judgement was thereafter taken out. This Summons for judgement was contested by the accused. After hearing both the parties, the Court was pleased to make an order requiring the accused to deposit a sum of Rs. 43,000/- in the said proceedings. Being aggrieved by the said order, the accused preferred a revision application in the High Court.

(3.) It is also the complainants filed case that pending these civil proceedings, the complainant filed a criminal complaint in the Court of Metropolitan Magistrate, 22nd Court, Andheri, Bombay. This criminal complaint came to be numbered as Case No. 108/S of 1980. In this criminal complaint, the complainant averred (a) that the accused had made a false representation that he was an officer of the Indian Airlines; (b) that the accused had undertaken to make payment in cash of the goods; (c) that it is on this representation that Bharat Distributors had supplied the goods; (d) that they discovered that the representations were false. In this complaint, the accused was inter alia charged for having committed an offence under section 420 of the Indian Penal Code. After verifying the complaint, the learned Magistrate issued process. Being aggrieved by these criminal proceedings, the original accused /petitioner has now filed the present petition.