Raminder Singh and ors. vs Darshan Singh

G.S. Chahal, J.

Raminder Singh and Baldev Singh, petitioners who were partners of M/s Birendra Steel Industries, Bhawanigarh have come up in this criminal miscellaneous under sec. 482, Cr. PC for quashing of the complaint dated 10289 and the summoning order dated 22789, passed by Sh. Hukam Chand, Judicial Magistrate I Class, Amloh.

In the impugned complaint, it is alleged that the complainant is carrying on business of iron merchant and commission agent at Mandi Gobindgarh. The complainant entered into business dealings with the petitioners in January 1988. The petitioners had agreed to purchase finished goods (Bars), weighing about 50 M.T. and it made a representation, assuring the complainant that the price of goods would be paid through payee''s account cheque. On this representation, the following goods were supplied and delivered to the petitioners :

Vide Bill No. Date Weight Q.Kg. Value

7 21.1.1998 16545 1,29,78725

8 22.1.1998 16520 1,29,68200

9 24.1.1998 15010 1,21,90575

Totalling to Rs. 3,80,76600

At the time of delivery of goods on 2411988, Raminder Singh issued a cheque for Rs. 3,80,766/ covering the price thereof. The cheque was drawn on Punjab and Sind Bank. Assurance was given that the cheque would be honoured on presentation as he had sufficient amount lying in that Bank. When presented, the cheque was dishonored with, the remarks "no Account." Both the petitioners had dishonestly induced the complainant to deliver the finished goods and had misappropriated the goods and thus, committed an offence under Secs. 420/406, IPC.

The petitioners have challenged this complaint on the ground that already a civil suit had been filed by the complainant and Jaswinder Singh had obtained an attachment under JUDGMENT 38 rule 5, CPC. A written statement had been filed by the petitioners. After obtaining attachment order, a complaint on the same facts had been instituted on 2691988. The complaint, as originally instituted, was sent to the police for a report and when it came up for further proceeding, it was dismissed for default, vide order dated 10289. A fresh complaint on the same facts was instituted and it is on the basis of the second instituted complaint that the summoning order had been passed by the learned Magistrate.

The fact that a civil suit had been instituted by the complainant and Jaswinder Singh, on behalf of the firm, M/s Upper Steel & Agro Industries, Iron and Commission Agents, Mandi Gobindgarh has not been disputed. This suit was instituted on 3151988 and is based on the same transactions of sale of goods and nonpayment of price. There are two facts to be considered in favour of the petitioners Firstly, that a previously instituted complaint had been dismissed for default and a second complaint on the same facts could not lie unless some special facts were disclosed and secondly, the dispute between the parties was of a civil nature and the criminal forum cannot be allowed to be used for settling a dispute of a civil nature.

In paragraph 12 of the complaint, a reference is made to the previously instituted complaint which had been dismissed on 1021989. However, no further facts are stated as to how a new complaint was being instituted. No efforts were made to get the order of dismissal of the previous complaint set aside in revision. In Bindeshwari Parshad Singh v. Kali Singh, AIR 1977 SC 2432, it was held that once a complaint is dismissed under section 203, Cr. PC, no second complaint on the same facts will lie.

The Civil suit was instituted on 31588 and it was only on 10.2.89 that a second complaint on the same facts was instituted. The dispute relates to nonpayment of the price of goods purchased and is a part of civil dispute. It is also interesting to note that two of the consignments were made on 21188 and 22188 and the cheque is alleged to have been issued only on 24188. It was a postdated cheque. The consignments valued at more than 2/3rd of the price due, were, thus, made even before the cheque was issued. The goods were, thus, not supplied on the assurance of the disputed cheque, but the cheque was issued (if it was, in fact, issued by the petitioners), for payment of the price of the goods. In this situation, no offence under sec. 420/406, IPC is made out.

For the reasons given above, I accept the criminal miscellaneous, quash the complaint and the summoning order and the consequent proceedings, if any.