Gurbachan Singh And Ors vs Shankar K. Mathod And Anr
2021 Latest Caselaw 6249 Bom

                                                                     1.cri.appln.5547.2004.doc

Tandale
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                 CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPLICATION NO.5547 OF 2004

          1.    Shri Gurbachan Singh                      }
                Aged about 65 years, C.M.D.               }
                M/s. Darshan Oils Ltd., Aligarh           }
                (UP) Resident of Surjeet House,           }
                Marris Road, Aligarh (UP).                }

          2.    Shri Balwant Singh,                       }
                Aged about 63 years,                      }
                Director, Darshan Oils Ltd.,              }
                Resident of Surjeet House,                }
                Marris Road, Aligarh (UP).                }

          3.    Shri Daljeet Singh,                       }
                Aged about 60 years,                      }
                Director, Darshan Oils Ltd.,              }
                Resident of Surjeet House,                }
                Marris Road, Aligarh (UP)                 }

          4.    Shri Satendra Singh                       }
                Aged about 58 years,                      }
                Director, Darshan Oils Ltd.,              }
                Resident of Surjeet House,                }
                Marris Road, Aligarh (UP).                }        .... Applicants.
                         Versus
          1.    Shri Shankar K. Mathod                    }
                Aged 52 years, Occ.: Business,            }
                Proprietor of M/s. Eskay Enterprises,     }
                having office at 2/40, Arihant Complex,   }
                Purna Village, Bhiwani, Dist.: Thane,     }
                Maharashtra and residing at               }
                Kannamwar Nagar-II, Building No.176,      }
                Room No.6044, Vikhroli                    }
                (East), Mumbai 4083.                      }

          2.    State of Maharashtra                      }        .... Respondents.



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                                                               1.cri.appln.5547.2004.doc



Ms. Aarti Deodhar a/w Mr. Virendra Pethe i/b. Mr. B.D. Joshi for the
Applicants.
Mr. Amit Palkar, APP for the Respondent No.2-State.


                                         CORAM : A. S. GADKARI, J.

DATE : 8th APRIL, 2021.

ORAL JUDGMENT :-

1. By the present Application under Section 482 of the Criminal

Procedure Code (for short, "Cr.P.C."), 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 Vikhroli, Mumbai.

2. Record reveals that, Respondent No.1 has been duly served in

the matter. The present Application was listed on board for final hearing on

4th March 2021, 24th March 2021 and 6th April 2021, when none appeared

for the Respondent No.1. In order to grant an opportunity to the

Respondent No.1, present Application was therefore adjourned on the

aforestated three dates and listed today for final hearing. Today also, none

appears for the Respondent No.1.

3. Heard Ms. Aarti Deodhar i/b. Mr. B.D. Joshi for the Applicants

and Mr. Palkar, learned A.P.P. for the Respondent No.2-State. Perused record.

4. Record discloses that, Respondent No.1 had earlier filed a

Criminal Case No.99/S/2000 in the Court of Additional Chief Metropolitan

Magistrate, 34th Court at Vikhroli, Mumbai, under Section 138 read with

1.cri.appln.5547.2004.doc

Sections 141 and 142 of the Negotiable Instruments Act, 1881 (for short,

"the N.I. Act"), against the applicant Nos.1 to 3 and other two accused

(companies), i.e. M/s.Darshan Oils Ltd. and M/s.Darshan Vanaspati.

It was the case of the Respondent No.1 that, his Company,

namely, M/s Eskay Enterprises, sold and supplied R.B.D Palmolein Oil to the

accused therein and raised invoices bearing Nos.590, 618, 619, 620, 621,

696 and 697 through the commission agent namely, Shri Kiran H. Shah.

That, the applicants vide its letter dated 22nd September 1999 addressed to

the said commission agent Shri Kiran H. Shah confirmed delivery and

informed that, they would clear the outstanding payment pertaining to the

said supply of goods. That, the applicant No.3 in 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 th November 1999 for an

amount of Rs.42,16,517/- drawn on Canara Bank, Aligarh Main Branch in

favour of the Respondent No.1. The said cheque was dishonoured on

presentation with the Banker of Respondent No.1, namely, Canara Bank,

Vikhroli, Mumbai - 83. The Canara Bank also issued a memo dated 14 th

January 2000 to the effect that the said cheque was dishonoured. The

Respondent No.1 thereafter sent a statutory notice dated 3rd February 2000.

As the applicant Nos.1 to 3 did not respond to the said notice within

stipulated period as per the provisions of N.I. Act, the Respondent No.1

1.cri.appln.5547.2004.doc

filed the aforestated complaint bearing No.99/S/2000 on 18th March 2000.

The record further reveals that, by an Order dated 4 th April

2000, the learned Magistrate issued process against the applicants and

other accused therein, making it returnable on 2nd November, 2000.

5. It is to be noted here that, though the complaint No.99/S/2000

was pending for adjudication, the Respondent No.1 being 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 21st June 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 Vikhroli, Mumbai, under Section 420 r/w 34 of the

Indian Penal Code.

6. A bare perusal of the second complaint i.e. C.C. No.144/Misc./

2001 would clearly indicate that, it has been filed on the same set of facts

as mentioned in first complaint i.e.Case No.99/S/2000, except with a few

variations in pleadings, only to attract Section 420 of I.P.C. The fact of

supply of Palmolein Oil, issuance of cheque by the applicants, their letter of

confirmation addressed to their commission agent Shri Kiran Shah and

dishonour of cheque on presentation and his filing of Complaint

No.99/S/2000 have been mentioned in the pleadings of the said complaint

up to para No.7. In para No.8 of the said complaint an allegation has been

added to the effect that, the applicants took delivery of the said goods by

1.cri.appln.5547.2004.doc

deceiving Respondent No.1 and issued a cheque knowing fully well that,

the applicants had insufficient funds in their account to honour the same.

7. It is thus apparently clear that, on the same set of facts with

same allegations, a second complaint is lodged by the Respondent No.1 to

set the criminal law in motion. It is important to note here that, in the

second complaint in para No.7, the Respondent No.1 has categorically

pleaded that, he had filed a Complaint bearing No.99/S/2000 in the same

Court. It is surprising to note that, despite the said specific and categorical

pleading, the Trial Court instead of verifying the stage/status of earlier

Complaint lodged by the Respondent No.1, after complying with necessary

legal formalities as contemplated under Section 202 of Cr.P.C., issued

process against the applicants. A non-bailable warrant was also issued on

18th February 2003 against the applicants. In furtherance of non-bailable

warrant, the applicants came to be arrested from their residence at Aligarh

on 15th August 2004 and were produced before the learned Magistrate, 34 th

Court, Vikhroli on 16th August 2004. They were released on bail on 16 th

August 2004 itself.

8. In this background, it is further important to note here that, the

first Complaint bearing No.99/S/2000 was dismissed by the same Court of

learned Magistrate on 20th November 2003 itself. As a result thereof,

applicants were acquitted as contemplated under Section 256(1) of Cr.P.C.,

from the earlier Complaint bearing No.99/S/2000. In this backdrop, the

1.cri.appln.5547.2004.doc

arrest of applicants in second Complaint on 16th August 2004 on the basis of

the same set of facts was unwarranted.

9. As noted earlier, the second Complaint i.e. the complaint in

question herein bearing No.144/Misc/2001 (renumbered as 81/S/2003),

which is filed on the same set of facts with little variation in pleadings only

to attract Section 420 of I.P.C. is a sheer abuse of process of law. Even

otherwise second crime on the basis of same set of facts is not tenable in the

eyes of law. It is the settled position of law that, there can be no second

F.I.R. in respect of same cognizable offence, same incident or occurrence.

Reliance is placed on the decision of the Hon'ble Supreme Court in the case

of T.T.Antony Vs.State of Kerala, reported in 2001 Cri.L.J. 3329 : (2001) 6

SCC 181.

10. This Court therefore is of considered view that, continuation of

second complaint filed by the Respondent No.1, i.e. Case No.144/Misc./

2001 (renumbered as 81/S/2003), is clear abuse of process of law and

undue harassment to the applicants.

In view of the above, the second complaint i.e.Case No.144/

Misc./2001 deserves to be quashed and set-aside, and is accordingly

quashed and set-aside.

11. Application is allowed and Rule made absolute in terms of

prayer Clause (a).

(A.S. GADKARI, J.)