GANGA TRADERS AND Vs. SANTOSH KUMAR AGARWALLA

JUDGEMENT

(1.) IN this criminal revision under Section 397 and 401 read with Section 482 of the Code of Criminal Procedure ('Code' for short) the Petitioners have challenged the order of cognizance of an offence under Section 420, I.P.C. against them and for quashing he criminal proceeding in I.C.C. Case No. R of 1985 of the Court of Sub -divisional Judicial Magistrate, Bolangir.

(2.) THE opposite party is the complainant of the case and the Petitioners are dealers of vehicles chassis of trucks manufactured by (Telco). The opposite party placed orders on 4 -4 -1980 with the Petitioners for purchase of a truck chassis with the condition that the same would be delivered to him within five years. Along with the purchase order he deposited Rs. 7920/ - and Rs. 2349. 75 with the Petitioners in two installments as advance. The truck chassis was not delivered to the opposite party according to the contract and so he demanded return of the amounts paid to the Petitioners at the time of booking. With much difficulty and persuasion and after several correspondences, the Petitioners issued two account payee cheques bearing No. 946437 for Rs. 2349.74 on 28 -11 -1982 and No. 245438 for Rs. 7920/ - on 6 -12 -1982 to be drawn from the State Bank of India at Bolangir fully, knowing that they had no cash in their account in the Bank. Their intention was to deceive the opposite party. Naturally the cheques were dishonoured by the Bank and he was further made to pay P.T. charges. They did not make payments subsequently on demand, but on the other hand took away the cheques from the opposite party. It was, therefore, alleged that the Petitioners committed an offence under Section 420, I.P.C.

(3.) MR . P. Palit, learned Counsel appearing for the Petitioners, urged that the element of cheating as defined in Section 415 being singularly absent and the necessary intent to deceive while issuing the cheques being not there, the Petitioners cannot be said to have committed an offence under Section 420, I.P.C. and if they are put to trial, there shall be abuse of process of the Court. Mr. S.S. Basu, learned Counsel appearing for the opposite party, on the other hand urged that fully knowing that they had no cash in their account in the Bank, the Petitioners issued the cheques. This being the position, the element of deception and the requisite intent were very much in existence from the beginning and so there being a prima facie case under Section 420, I.P.C. interference by the Court at this stage is unwarranted.