PUSHPA KHERA Vs. PISHORI LAL

JUDGEMENT

(1.) THIS petition under Section 482, Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), relates to quashment of the complaint (Annexure P2), filed against the petitioners and others, under Section 420 read with Section 120-B, Indian Penal Code, pending in the Court of Judicial Magistrate Ist Class, Ambala City, and, the consequent proceedings including the order (Annexure P4) summoning the petitioners and others.

(2.) ACCORDING to the allegations in the complaint, the complainant respondent is an active partner of the firm, known as M/s. Amar Nath Pishori Lal, Anaj Mandi, Ambala City. The said firm carries on business in Bardana goods (bags for packing rice). The petitioners, and their other co-accused have been jointly, and, severally dealing with the complainant for purchase of Bardana goods on credit in their individual, and, also on behalf of their registered firm, known as M/s. Trishul Rice Mills, Chhajjal Majra. The petitioners and their four other co-accused purchased Bardana goods worth Rs. 2,64,175 from 28.9.1984, to 9.1.1985, and made the payment of Rs. 2 lacs only at various times. The petitioners and their co-accused made further purchase of Bardana goods worth Rs. 77,780/- and made the payment of Rs. 99, 943/- at various times. As such a sum of Rs. 42,012/- remained unpaid after 28.12.1985, when, the last payment of Rs. 20,000- was made to the complainant. On 25.11.86 Arvan Khera (petitioner No 2) issued a cheque for Rs. 15,000/- in the name of the complainant firm. No payment concerning the said cheque could be made to the complainant firm as the payment had been stopped by the drawer, i. e. Arvan Khera accused. It was next pleaded that by the issuance of the said fake and bogus cheque, the complainant-respondent was induced to part with Bardana goods. At the time of issuance of the said cheque, Arvan Khera accused had full knowledge and intention that the said cheque will not be encashed and he deliberately stopped the bank from making the payment to the said cheque, and, thereby all the accused, who had no intention to make the complainant, have cheated the complainant and have committed an offence of punishable under Section 420 read with Section 120-B of the Indian Penal Code.

(3.) AS held in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, AIR 1983 Supreme Court 67, proceedings against an accused in the initial stages can be quashed only if on the face of the complaint, or, the papers accompany the same, no offence is co situated. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the Code. In the instant case, admittedly, from the allegations, made in the complaint, it is quite patent that the complainant had supplied Bardana goods worth Rs. 2,64,175/- to the petitioners and their four other co-accused on various occasions during the period 28.9.1984 to 9.1.1985, and, they had made the payment to the tune of Rs. 2 lacs at various times. Subsequently, the accused purchased Bardana goods worth Rs. 77,780/-, and made payment to the tune of Rs. 99,943/-. Thus the balance of Rs. 42,012/- remained due from the petitioners and their other co-accused, to the complainant by the end of the year 1985. A cheque for Rs. 15,000/- was issued on 25.11.1986 by Arvan Khera petitioner in favour of the complainant and the same was dishonoured, as payment thereof was stopped by the drawer. From all these facts detailed in the complaint, it is quite obvious that the said cheque for Rs. 15, 000/- was not issued against the delivery of goods. Rather the delivery of goods, purchased by the petitioners and their other co-accused from the complainant, had been made much before the said cheque was issued in favour of the complainant. Thus, at the time of issuance of the said cheuqe the complainant was not, in any manner, induced to deliver, or, part with any property, or, to do, or to omit to do anything, by any of the accused. The dispute between the parties merely amounts to breach of promise, and gives rise to civil liability, and, does not amount to commission of an offence of cheating.