Bombay High Court
Manisha W/O Mahendra Deshmukh And ... vs The State Of Maharashtra And Anr on 11 April, 2017
Bench: S.S. Shinde
5485.16appln
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 5485 OF 2016
1) Manisha W/o Mahendra Deshmukh
Age : 45 years, Occ : Business,
R/o Sangvi (Benak), Tq. Mukhed,
Dist. Nanded
At present residing at
Vasant-Kunj, Sant Dnyaneshwar Nagar,
Latur.
2) Mahendra S/o Khanderao Deshmukh
Age : 50 years, Occ : Agri.,
R/o As above.
3) Rashmi Ramakant Deshmukh
Age : 47 years, Occ : Service,
R/o Sangvi (Benak), Tq. Mukhed,
Dist. Nanded.
4) Subhash Maruti Chabare
Age : 42 years, Occ : Agri.,
R/o As above.
5) Ambadas Vasantrao Deshmukh
Age : 45 years, Occ : Agri.,
R/o As above.
6) Premla Kishanrao Deshpande
Age : 46 years, Occ : Household,
R/o As above.
7) Maruti Manikrao Deshpande
Age : 55 years, Occ : Agri.,
R/o As above.
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5485.16appln
2
8) Kishanrao Yashwantrao Deshpande
Age : 52 years, Occ : Agri.,
R/o As above.
..APPLICANTS
-VERSUS-
1) The State of Maharashtra
Through Police Station Officer,
Police Station Latur (Gramin),
Dist. Latur
2) Dhanraj Ankushrao Mane
Age : 37 years, Occ : Business,
R/o LIC Colony, Baldava Nagar,
Ring Road, Latur,
Tq. & Dist. Latur.
..RESPONDENTS
...
Advocate for applicants :Mr.Swapnil Rathi
APP for Respondent/State : Mr. P.G. Borade
Advocate for respondent No.2: Mr. M.D. Gitte
...
CORAM : S.S. SHINDE &
K.K. SONAWANE, JJ.
RESERVED ON : 6th April, 2017
PRONOUNCED ON : 11th April, 2017
JUDGMENT (S.S. SHINDE,J):-
Heard the learned counsel appearing
for the applicants. He invites our attention
to the allegations in the first information
report and submits that, even if those
allegations are taken at its face value and
read in its entirety, the alleged offences
are not disclosed. He further submits that,
5485.16appln
there is nothing on record to show that, at
any point of time, the said Sanstha has
purchased the maize worth Rs.6,93,750/- from
respondent no.2 - informant. He submits that,
even if the allegations in the first
information report are taken as it is, at the
most, it can be said that, one of the member
of the society/trustee has issued the cheque
of Rs.6,93,750/- but without knowledge of
other applicants. Other applicants are not
looking day today affairs of the society. He
submits that, the ingredients of Section 420
of the I.P. Code are not attracted. To
attract the said provision, there should be
averments in the first information report
that, the accused since inception had
intention to cheat the informant. He submits
that, one of the accused though died, the
informant stated in the first information
report that, all the accused came in his
house and requested to supply the maize and
it shows that, the allegations in the first
information report are false. In support of
his contentions that, when the proceedings
under Section 138 of the Negotiable
Instruments Act for dishonour of cheque are
already pending, the first information report
for the alleged offences under Section
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406/420 of the I.P. Code is not maintainable,
the learned counsel appearing for applicants
placed reliance on the exposition of law by
the Supreme Court in the case of G. Sagar
Suri and another V/s State of U.P. and
others1. He further invites our attention to
the another judgment of the Supreme court in
the case of Monaben Ketanbhai Shah and
another V/s State of Gujarat and others 2 and
submits that, in the facts of that case, it
is held that, all the partners are not
responsible for conduct of day today business
of the firm.
2. On the other hand, the learned
A.P.P. appearing for the respondent/State and
the learned counsel appearing for respondent
No.2, submit that, in the first information
report itself, it is stated that, though the
amount of Rs.6,93,750/- was not available in
the account, so as to cheat and deceive the
informant fraudulently the cheque was issued
to the informant amounting to Rs.6,93,750/-.
The learned A.P.P. invites our attention to
the investigation papers and submits that,
the statement of the concerned vehicle driver
1(2000) 2 SCC 636
2 AIR 2004 SC 4274
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is recorded. He stated that, the maize was
shifted from the house of the informant and
it was unloaded in the office of the Society,
and therefore, the receipt is also issued of
supply of maize by the Secretary, Jaibhavani
Gramvikas Bahooudheshiya Sevabhavi Sanstha,
Sangvi(Benak), Tq. Mukhed, Dist. Nanded. He
invites our attention to the Full Bench
Judgment of Andhra Pradesh High Court in the
case of M/s OPTS Marketing Pvt. Ltd., and
others V/s State of A.P., and others 3, and
submits that, the view is taken in the said
judgment that, even after introduction of
Section 138 of the Negotiable Instruments
Act, prosecution under section 420 of the
I.P. Code is maintainable in case of
dishonour of cheques or postdated cheques
issued towards payment of price of the goods
purchased or hand loan taken.
3. We have given careful consideration
to the submissions advanced by the learned
counsel appearing for the applicants, learned
A.P.P. appearing for respondent/State and the
learned counsel appearing for respondent
no.2. We have carefully perused the
allegations in the first information report.
3 2001 Cri.L.J. 1489
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There are specific allegations in the first
information report that, though the
money/amount was not available in the account
of the Sanstha, the cheque of Rs.6,93,750/-
was issued in the name of respondent no.2 and
it shows the intention of cheating by the
applciants since inception. It is stated in
the first information report that, all the
applicants came to the house of the informant
and requested him to supply the maize and
accordingly, the informant has supplied the
maize.
4. Perusal of the investigation papers
prima facie shows the involvement of the
applicants. The alleged offences are
disclosed and those need investigation.
Merely because, respondent no.2 has initiated
the proceedings under section 138 of the
Negotiable Instruments Act, after registering
the first information report, is not a ground
to quash the first information report. Hence
the application stands rejected. However,
this order will not preclude the applicants
from availing of the appropriate remedy
before appropriate Forum in the event of
filing Report/Charge-sheet by the
Investigating Officer. However, we make it
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clear that, the observations made
hereinbefore are prima facie in nature and
confined to the adjudication of this
application only.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.)
...
SGA
