VIJAYA JAWA Vs. NATIONAL FERTILIZERS LTD.

JUDGEMENT

(1.) THIS is a petition under Section 482, Code of Criminal Procedure, for quashing the complaint under Section 420 read with section 34, Indian Penal Code, (hereinafter called the 'Code') dated October 31, 1984, Annexure P6, filed on behalf of the respondent National Fertilizers Ltd. against the petitioners. It has been alleged in the complaint that the accused had approached the complainant for being appointed as its dealer for the distribution of fertilizers and an agreement was entered into by him with the company, vide copy, Annexure P1, dated 1.12.1981. The accused had represented that the payment of the fertilizers supplied would be duly made by means of cheques and the facility for making the payment through cheques may be given. The first accused was supported by his representation by accused No. 2, who was present all along at the time when the said agreement was entered into and also on his own held out assurance that the representations made to Dr. S.N. Pandey, the then Marketing Manager were true. It was further alleged that the accused were believed and that accused No. 2 gave an undertaking in writing that the company will not suffer any harm if the facility by payment by cheque is given to accused No. 1, i.e., Shri Vijaya Jawa. The company, acting upon the representations made by the two accused, supplied fertilizers to accused No. 1 who gave nine cheques during the period from June, 1982 to October, 1983, for various amounts drawn on his bankers favouring the company, but none of the cheques was honoured by the bankers of accused no. 1. The accused never intended to make any payment to the company, but only wanted the supplies to be made for the purpose of making a wrongful gain and the accused have, by making false presentations, cheated the company. The intention of the accused was to defraud the company. The acts and conduct of the accused attracted the penal provisions of section 420 read with section 34 of the Code. The learned Chief Judicial Magistrate, after recording the statements of Sohan Lal Bali, PW 1 and Mohinder Singh, PW 2, came to the conclusion that prima facie offence under section 420 read with section 34, of the Code, was made out against Vijay Jawa and Harbhajan Lal Gugnini, who had stood surety for the recovery of the money from accused No. 1. Consequently both the accused were ordered to be summoned vide order dated August 22, 1985, copy Annexure P7. However, proceedings before the Chief Judicial Magistrate were stayed by this Court vide order dated October 9, 1986.

(2.) THE learned counsel for the petitioner submitted that in clause 3 of the agreement, copy vide Annexure P1, it was clearly provided that in case the cheque is dishonoured, the dealer would immediately make payment on receipt of the information from the National Fertilizers Ltd. The dealer shall also pay interest at the rate of 20 per cent from the date of the cheque to the date the payment is actually made failing which the National Fertilizers would be entitled to take civil and criminal action in a Court of law. Again clause 9 of the said agreement, it is provided that it will be open to the National Fertilizers Limited to take possession of the unsold goods supplied by it and lying with dealar at the expense and cost of the dealar, in the event of the cheque being dishonoured. The clause would be resorted to in addition to the remedies which are available to the National Fertilizers Limited in the ordinary civil and criminal Courts. In view of these provisions in the agreement, argued the learned counsel, it was a civil liability and no criminal offence could be said to have been made out against the accused. In support of the contention, the learned counsel relied upon Hari Prasad v. Bishun Kumar, AIR 1974 Supreme Court 301 and Trilok Singh v. Satya Deo, AIR 1979 Supreme Court 850.

(3.) SECTION 415 of the Code defines the offence of cheating. It reads as follows :-