Prem Kumar Khattar vs Har Bhagwan

S.S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure relates to the quashment of complainant dated 2.6.1987 (Copy Annexure P1) filed by the respondents against the petitioners before the Court of Additional Chief Judicial Magistrate, Faridabad.

As per the allegations contained in the complaint M/s. Haryana Beer Agencies, Registered Partnership firm, Faridabad is a registered partnership firm. Ram Kumar Gupta and Har Bhagwan complainant are the partners of the said firm. The complainant is a wholesale dealer in English Wine and Beer. He had sold English Wine and Beer to petitioners No. 1 and 2 on the basis of valid permits issued in their favour on cash credit basis themselves, as well as through petitioner No. 3 father of petitioner No. 1 from time to time. It was further pleaded that on 17.9.1984 Chander Bhan petitioner No. 3 approached the complainant and purchased English Wine and Beer on behalf of petitioner Nos. 1 and 2 of the value of Rs. 35315.00. Petitioner No. 3 received delivery of English Wine and Beer worth Rs. 35315.00 from the complainant on his assurance that a postdated cheque given by petitioner No. 3 in favour of the complainant worth Rs. 47049.10 would be honoured and encashed when presented after 31.10.1984. It was further pleaded that all the accused conspired and colluded in order to cause wrongful gain to themselves, and wrongful loss to the complainant. It was further alleged that the aforesaid postdated cheque was dishonoured after the same was presented by the complainant through Bankers "Bank of Baroa, NIT, Faridabad" on 8.11.1984.

Counsel for the parties were heard.

It was mainly contended on behalf of the petitioners that Chander Bhan Khattar petitioner No. 3 was not illegally authorised by petitioner Nos. 1 and 2 to have any business dealings with the complainant party; the postdated cheque was signed and given by petitioner No. 3 to the complainant and the said cheque was with regard to payment of Rs. 47049.10, whereas, the purchases made were only to the tune of Rs. 35315/. On this basis it was vehemently contended that the postdated cheque related to preexisting liability and the same cannot be deemed to have been issued against the delivery of goods worth Rs. 35,000/ referred to above. It was also contended that the matter in dispute is purely of civil nature, and two civil suits filed against the petitioners by the complainant firm are already pending and as such the complaint is liable to be quashed.

It is true that there is no allegation in the complaint that petitioner No. 3 was duly authorised to make purchases on behalf of the petitioners Nos. 1 and 2 from the complainant firm. The fact remains that petitioner No. 3 who was a close relation of the petitioners Nos. 1 and 2 gave postdated cheque which was subsequently dishonoured on presentation after the due date to the bank on which it was drawn. The said cheque was dishonoured with the endorsement that there was no such account with the bank. Petitioner No. 3 also received delivery of English Wine and Beer worth Rs. 35315/ from the complainant firm on the assurance that postdated cheque given by him in favour of the complainant would be honoured even though he (petitioner No. 3) fully knew that his account with the bank had already been closed much before the issuance of the cheque.

From the allegations referred to above, it is quite apparent that petitioner No. 3 deceived the complainant party by dishonestly inducing him to deliver English Wine and Beer worth Rs. 351315/ to him on behalf of the petitioners No. 1 and 2. Petitioner No. 3 also dishonesty concealed all these material facts which indicate that petitioner No. 3 deliberately and wilfully cheated the complainant party.

In these circumstances mere fact that the complainant party had filed civil suits against the petitioners for recovery of amount due would not in any manner help as far as the petitioner No. 3 is concerned. The allegations concerning cheating against petitioner No. 3 as well as concerning dishonest intention for payment of Rs. 35315/ to the complainant may to some extent overlap but the circumstances referred to above certainly would not be sufficient to hold that the dispute between the petitioner No. 3 and complainant is exclusively of civil nature or that the petitioner No. 3 cannot be proceeded against in respect of criminal liability under Section 420 IPC. I am supported in my view by Single Bench Authority in this Court in Tilak Raj Bakshi v. Prem Chand, 1984(2) Recent Criminal Reports 435 . Thus the complaint qua petitioner No. 3 is not liable to be quashed.

As far as petitioners No. 1 and 2 are concerned, there are no specific allegations that petitioner No. 3 had been in any manner legally authorised to act on their behalf, for making purchases of English Wine and Beer from the complainant. The allegations concerning alleged conspiracy between petitioner No. 3 and petitioners Nos. 1 and 2 are quite vague and indefinite, and these allegations would not be sufficient to uphold the charge of conspiracy allegedly entered into between petitioner No. 3 and petitioners Nos. 1 and 2 for commission of offence of cheating. In these circumstances, the impugned complaint against the petitioners Nos. 1 and 2 or consequent proceedings taken thereunder against the said respondents cannot be legally sustained, and the same are directed to be quashed.

Both, the complainant as well as petitioner No. 3 are directed to appear before the trial Court on 1.9.1989. The trial Court shall dispose of this case expeditiously. This petition is partly allowed to the extent indicated above.