Bombay High Court
Jarnailsingh Darshansingh Nahal And ... vs The State Of Maharashtra And Anr on 24 January, 2024
Author: A. S. Gadkari
Bench: A. S. Gadkari
2024:BHC-AS:4022-DB
Jyoti Cr.WP 1852-16.doc.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1852 OF 2016
1. Jarnailsingh Darshansingh Nahal,
Age- 65 years,Occupation-: Business,
2. Shri. Gurjeetsingh Jarnailsingh Nahal,
Age- 35 years,
Occupation-: Business,
Both Nos. 1 and 2, R/o. Bunglow No. 10, Govindnagar
Housing Society, Chandannagar, Kharadi Road,
Pune- 411014. ..... Petitioners
V/S
1. The State Of Maharashtra
Through the Senior Police Inspector,
Daund Police Station, Daund,
Tal.Daund, District: Pune.
2. Shri Chetan Girish Agarwal,
Age- 29 years,
Occupation-: Business,
JYOTI R/o. Gandhi Chowk, Tal. Daund, District: Pune ....Respondents
RAJESH ..........
MANE
Digitally signed
by JYOTI Mr. Ravindra S Pachundkar for the Petitioners
RAJESH MANE
Date: 2024.01.29
11:03:25 +0530
Mr. Ajay Patil APP for the Respondent-State
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 22nd DECEMBER, 2023
PRONOUNCED ON : 24th JANUARY, 2024.
Jyoti Cr.WP 1852-16.doc.odt
JUDGMENT [PER: SHYAM C. CHANDAK, J.]
1) Present Petition is filed under Article 226 of the Constitution of
India, and under Section 482 of the Criminal Procedure Code, seeking to
quash FIR No.130/2016 registered with Daund Police Station, under Section
420 and 34 of Indian Penal Code, 1860.
2) Heard learned counsel Mr.Ravindra S. Pachundkar for the
Petitioner and Mr.Ajay Patil learned APP for the Respondent-State. Perused
the record.
3) Record reveals that, by an Order dated 23 rd August, 2016, ad-
interim relief was granted with a direction that, though investigation shall
continue, the charge-sheet shall not be filed as against the Petitioners. The
Orders dated 21st January, 2019 and dated 23rd January, 2019 reveal that,
though the notice was served upon the Respondent No.2, he has chosen not
to appear. Further, the Petition was admitted and the ad-interim Order was
continued.
4) Facts giving rise to this Petition are as under:-
That, on 22nd March 2016, the Respondent No.2 lodged the
report with Daund Police Station, wherein he narrated that between 24 th
September, 2015 and 7th January, 2016, he remolded Truck Tyres for the
Jyoti Cr.WP 1852-16.doc.odt
Petitioners. The said work bill amount was totaling to Rs.3,11,100/-. Out of
said amount, the Petitioners paid Rs.62,800/- only by cheques
(20800+16800+25200, on 16th & 27th November and 9th December of 2015
respectively). Thus, the balance amount of Rs.2,48,300/- was due and
payable by the Petitioners. Thereafter, on 13th January, 2016, the Petitioners
gave a cheque for Rs.50,000/-, but the said cheque dishonored when
presented for encashment. Hence, the Respondent No.2 sent his messenger
to the Petitioners and asked for the balance amount. The Petitioners
promised that they would pay the balance. The Petitioners, however, avoided
to pay the same, thus, they cheated the Respondent No.2. Hence, Daund
Police Station, Pune registered the impugned F.I.R. against the Petitioners.
5) Learned counsel for the Petitioners submitted that, the subject
transaction was related to the business between the parties, and thus, purely
of civil nature. The dishonour of the cheque was accidental and not
intentional. Separate legal remedy is provided for the dishonored cheque.
There was no mens rea on the part of the Petitioners to attract the offence of
Section 420 of the IPC. Therefore, the F.I.R. cannot be filed. However, the
F.I.R. has been registered by the Respondents just to pressurise the Petitioners
to extract money from them. In this background, registration of the said FIR
is illegal and it is liable to be quashed. To support the above submission, the
Jyoti Cr.WP 1852-16.doc.odt
learned counsel cited following decisions:
i) S.W.Palanitkar and others Vs. State of Bihar and Another (2002) 1 SCC
241. In this case it is held that, the fraudulent or dishonest intention must be
shown to have existed at the time of making of the inducement in order to
make out the offence of cheating. Otherwise, mere failure to keep a promise
subsequently, cannot be presumed as an act leading to cheating.
ii) G.Sagar Suri and Another Vs. State of U.P. and Others (2000) 2 SCC 636 .
In this case it is held that, jurisdiction under Section 482 of Cr.P.C. has to be
exercised with great care. In exercise of its jurisdiction the High Court is not
to examine the matter superficially. It is to be seen if a matter, which is
essentially of a civil nature, has been given a cloak of criminal offence.
Criminal proceedings are not a short cut of other remedies available in law.
6) Learned APP vehemently submitted that, there is prima facie
case of cheating against the Petitioners. Hence, the Petition be dismissed.
7) As noted above, the tyre remolding work was done between 24 th
September, 2015 and 7th January, 2016. It was very short period of 3 to 4
months. However, the total charges of remolding work were Rs.3,11,100/-.
This indicates that, there was considerable work of the tyre remolding.
However, out of the said amount, the Petitioners paid only Rs.62,800/- by
cheque between 16th November 2015 to 9th December 2015. Thereafter, the
Jyoti Cr.WP 1852-16.doc.odt
cheque drawn by the Petitioners for Rs.50,000- towards part payment of the
balance amount was dishonored. Hence, the Respondent No.2 send his
messenger to the Petitioners and asked for his money. In turn, the Petitioners
promised to pay the balance amount, however, they avoided to pay the same.
All this happened in quick succession. Therefore, and considering the text of
the F.I.R., we are of the considered opinion that, since beginning the
Petitioners did not intend to pay the entire charges of the tyre remolding
work, therefore they dishonestly deceived the Respondent no.2 and induced
him to do the tyre remolding work for them which the Respondent No.2
would not have done if he was not so deceived. As such, there is prima facie
case of commission of offence as alleged against the Petitioners in the subject
F.I.R. As a result, the Petition is liable to be dismissed.
8) The Criminal Writ Petition is dismissed.
(SHYAM C. CHANDAK,J.) (A. S. GADKARI, J.)
