OMPRAKASH DEVICHAND SONI Vs. GANSHAN RAMCHAND

JUDGEMENT

(1.) THE petitioner challenges the process issued against him by the Metropolitan Magistrate, 4th Court, Girgaum at Bombay in Case No.120/s/90, that process eminates from a complaint made by the first Respondent before the Magistrate alleging that the Petitioner had cheated him. According to the first respondent, there was a business transaction going on between the petitioner and the first respondent in supplying clothes. THE respondent used to supply clothes to the petitioner and the petitioner used to do the business relating to the clothes in selling. It is clearly alleged in the complaint before the Magistrate that the amount of Rs. 56,575/- was due from the petitioner to the first respondent on the transactions. It is further alleged that two cheques of Rs. 1500/- each were issued by the petitioner to the respondent towards those amount, which was dishonored and cheque was returned with an endorsement refer to drawer.

(2.) I heard the counsel for the Petitioner Miss Madhavi P. Malkas and A. P. P. Shri Adsule for the State. No representation on behalf of the first respondent. I also gone through the complaint and other records relating to the case. The liability of payment of Rs. 56,575/- has been admitted by the petitioner. Towards that two cheques were issued, which was dishonored. A mere dishonour of a cheque issued, will not amount to cheating, defined under Section 415 of the Cr. P. C. There is no averment in the complaint that the cheque was issued with a view to defraud the creditor knowing fully well that there was no amount in the bank. In the absence of such allegations, it cannot be possible to contend that the complaint discloses the offence of cheating. On perusal of the complaint made before the Magistrate, I think that a genuine Civil dispute is disclosed between the parties and in such circumstances, no criminal prosecution is maintainable. In view of this, I do not think the Magistrate is justified in issuing process on the allegation made in the complaint.