08 Apr 2121
Case : Gurbachan Singh and Ors. v. Shankar K. Mathod and Anr. Criminal Application No. 5547 of 2004
Court : Bombay High Court
Bench : Justice A. S. Gadkari
Decided on : 08 Apr 2121
Sections 202, 256(1), 482 of the Code of Criminal Procedure, 1973
Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act, 1881
Section 420 read with Section 34 of the Indian Penal Code, 1860
Brief Facts & Procedure History
1. The relevant seminal facts are that the company of Respondent No.1, M/s Eskay Enterprises sold and supplied R.B.D Palmolein Oil to the accused and raised invoices bearing Nos. 590, 618, 619, 620, 621, 696 and 697 through the commission agent, Kiran H. Shah. The Applicants vide letter dated 22.9.1999 addressed to the said commission agent confirmed the delivery and informed that they would clear the outstanding payment pertaining to the said supply of goods. Applicant No.3 in the discharge of liability for payment of goods supplied by Respondent No.1 to M/s.Darshan Vanaspati (original Accused No.2), in his capacity as Director of M/s.Darshan Oils Ltd. issued a cheque bearing No.1731838 dated 6.11.1999 for an amount of Rs.42,16,517/- drawn on Canara Bank in favour of Respondent No.1.
2. The said Cheque was dishonoured on presentation with the Banker of Respondent No.1, Canara Bank who issued a memo dated 14.1.2000 to that effect. Thereafter, Respondent No. 1 sent a statutory notice dated 3.2.2000. As the applicant Nos. 1 to 3 did not respond to the said notice within the stipulated period as per the provisions of Negotiable Instruments Act, 1881, Respondent No.1 filed the complaint bearing No.99/S/2000 on 18.3.2000. By the order dated 4.4.2000, the learned Magistrate issued a process against the applicants and other accused, making it returnable on 2.11.2000.
3. Though complaint No.99/S/2000 was pending for adjudication, Respondent No. 1 being the proprietor of M/s. Eskay Enterprises, impleading the applicants in their capacity as Directors of Darshan Vanaspati and omitting the said company, filed a fresh Complaint on 21.6.2001 bearing Criminal Case No.144/Misc/2001 (renumbered as 81/S/2003) in the same Court i.e. learned Metropolitan Magistrate, 34th Court at Mumbai, under Section 420 read with 34 of the Indian Penal Code, 1860. A bare perusal of the second complaint i.e. C.C. No.144/Misc./2001 has been filed on the same set of facts as mentioned in the first complaint i.e. Case No.99/S/2000, except with a few variations in pleadings, only to attract Section 420 of Indian Penal Code, 1860.
4. Hence, the applicants/original accused have prayed for quashing and setting aside Criminal Case No.144/Misc/2001 (renumbered as 81/S/2003), pending on the file of learned Metropolitan Magistrate, 34th Court at Mumbai under Section 482 of the Code of Criminal Procedure, 1973.
The Issue of the Case
Whether the applicants/original accused are entitled to quashing and setting aside of the Criminal Case No.144/Misc/2001 under Section 482 of the Code of Criminal Procedure, 1973?
The Observations of the Court
The Honourable Bombay High Court observed the following:
1. Observed that based on the same set of facts with the same allegations, a second complaint is lodged by the Respondent No.1 to set the criminal law in motion.
2. Took cognizance of the fact that in the second complaint in para No.7, Respondent No.1 has categorically pleaded that he had filed a Complaint bearing No.99/S/2000 in the same Court.
3. Opined that the Trial Court instead of verifying the stage/status of earlier Complaint lodged by Respondent No.1, after complying with necessary legal formalities as contemplated under Section 202 of the Code of Criminal Procedure, 1973, issued process against the applicants where the applicants were arrested. They were produced before the learned Magistrate, 34th Court on 16.8.2004 and were released on bail.
4. Witnessed the dismissal of the first complaint bearing No.99/S/2000 and as a result, the applicants were acquitted under Section 256(1) of the Code of Criminal Procedure, 1973. Hence, the arrest of the applicants in the second Complaint on 16.8.2004 on the basis of the same set of facts was unwarranted.
5. By referring to the case of T.T. Antony v. State of Kerala, 2001 Cri. L. J. 3329 : (2001) 6 SCC 181, the Court contemplated that the second Complaint bearing No.144/Misc/2001 (renumbered as 81/S/2003) filed on the same set of facts with little variation in pleadings only to attract Section 420 of Indian Penal Code, 1860 is sheer abuse of process of law and undue harassment to the applicants.
The Decision Held by the Court
The Honourable Bombay High Court set aside the second complaint i.e. Criminal Case No.144/Misc/2001.