The Bombay High Court allowed a writ petition filed under Article 226 of the Constitution of India r/w. Section 482 of the Code of Criminal Procedure 1973, for quashing F.I.R. for offences punishable u/s. 406 and 420 of the Indian Penal Code, 1860 and consequent criminal cases pending.
The Court observed that assuming that the Petitioner has received monetary benefits by selling the raw material to a third-party purchaser, without paying its initial purchase costs to the Respondent-Complainant, still it does not mean that there was an intention to cheat from the inception, which is the basic ingredient of offence u/s. 420 of IPC, because admittedly as per FIR Petitioner has paid till May 2012.
Brief Facts:
Respondent No. 2 is a businessman running a Company called “New World Resources” who is engaged in the business of selling polymer raw materials, plastic, etc. From February 2012 till September 2012, Respondent No. 2 supplied polymer raw materials to the Petitioner’s company Shreeji Trade Corporation from the godown at Bhiwandi. Since the demand for raw materials continued from February 2012 till 25th September 2012, the Petitioner purchased raw materials from time to time and it is admitted that till May 2012, the Petitioner had paid the consideration for the raw material purchased.
For the purchase of raw materials from May 2012 to September 2012, the Petitioner issued cheques towards the amount of consideration; however, when the said cheques were deposited in the Bank, the payment did not realize because the Petitioner had issued stop payment instructions. It is alleged that on inquiry with the Petitioner about due payment, the Petitioner gave evasive answers and avoided paying.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner argued in support of his case and took the Court through various documents including FIR and statements recorded during the course of the investigation
Contentions of the Respondent:
The Learned Counsel for the Respondent pointed out material gathered during the investigation. Learned Counsel for Respondent No. 2 vehemently opposed the grant of any relief in the favour of the Petitioner. He submitted that the material gathered against the Petitioner is sufficient for the Petitioner to face Trial in the facts and circumstances case.
The Court observed that since Respondent No. 2 has admitted in the FIR itself that in the ongoing transaction of sale and supply of raw materials from February 2012 to September 2012, the Petitioner had already paid part of the amount towards the sale of raw materials till May 2012, the basic ingredient of the offense of cheating u/s. 420 which is a fraudulent or dishonest inducement (which is required to be in existence since inception) is clearly lacking. The said allegations taken at their face value, also do not constitute an offence u/s. 406 because there is no entrustment of property with the Petitioner having dominion over the same and dishonestly misappropriating or converting the same to his own use or dishonestly using or disposing of said property.
Further, the Court remarked that assuming that the Petitioner has received monetary benefits by selling the raw material to a third-party purchaser, without paying its initial purchase costs to the Respondent-Complainant, still it does not mean that there was an intention to cheat from the inception, which is the basic ingredient of an offence u/s. 420 of IPC, because admittedly as per FIR Petitioner has paid till May 2012.
The decision of the Court:
The Bombay High Court, allowing the petition, held that in view of the lack of basic ingredients of both the offences with which Petitioner is charged, it will be an abuse of the process of law, if the Petitioner is permitted to be prosecuted further.
Case Title: Mr. Mahesh Shantilal Parekh vs The State of Maharashtra & Anr.
Coram: Hon’ble Justice Sunil B. Shukre and Hon’ble Justice M.M. Sathaye
Case no.: CRIMINAL WRIT PETITION NO. 4400 OF 2013
Advocate for the Petitioner: Mr. Mubin Solkar
Advocate for the Respondent: Mr. K.V. Saste
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