ANIL KUMAR SHARMA, J. - (1.) I have heard the learned counsel for the applicants and the learned counsel for the respondents and perused the papers filed along with the application.
(2.) THIS application seeks to quash the proceedings of Complaint case no. 319/08 M/s Ravi Malleable Vs. Suneel Kumar Mehtra and another u/s 420 IPC pending in the Court of Special Chief Judicial Magistrate. Meerut. Facts germane to the instant application are that the respondent no. 2 filed a criminal complaint on 17.1.2008 in the Court of Special Chief Judicial Magistrate, Meerut against the applicants for commission of offences punishable u/s 420 IPC alleging that the respondent no. 2 deals in manufacturing and supply of galvanized malleable circular boxes and the applicants made the firm to believe that they require the aforesaid goods for export. The applicants approached the respondent no. 2 on 17.3.2003 at Meerut and approved the boxes manufactured by them. They assured that the payment would be made within 30 days from the date of the bill and no sales tax was to be paid on the goods supplied to them, as they would send Form H on the bill of lading. The complaint further stated that on this assurance the respondent no. 2 agreed to supply the goods and an order was placed on 29.3.2003. They supplied ordered items as per followings details: i) Bill no. 39 dated 13.10.2003 for Rs. 1,95,402/ , ii) Bill no. 42 dated 24.10.2003 for Rs. 1,96,260/ , iii) Bill no. 45 dated 10.11.2003 for Rs. 1,49,940/ , iv) Bill no. 48 dated 30.11.2003 for Rs. 2,03,400/ , v) Bill no. 54 dated 27.12.2003 for Rs. 2,89,560/ , vi) Bill no. 59 dated 15.1.2004 for Rs. 1,59,480/ , vii) Bill no. 60 dated 29.1.2004 for Rs. 1,96,800/ , viii) Bill n o. 67 dated 28.2.2004 for Rs. 4,47,600/ , ix) Bill no. 71 dated 22.3.2004 for Rs. 2,55,990/ , and x) Bill no. 73 dated 31.3.2004 for Rs. 2,81,900/ . The applicants have sold the items covered under these bills, but did not send Form H along with bill of lading to respondent no. 2. Many times they were contacted, but of no avail. On account of non availability of Form H, the Trade Tax Officer sent notice dated 31.1.2006 to respondent no. 2 imposing penalty of Rs. 2,35,083.00 on them. Information in this regard was sent to applicants, but they did not pay any heed. Thereafter a legal notice dated 14.5.2007 was sent to the applicants, but neither they sent Form H nor paid the penalty nor they sent any reply. The complaint concluded that the applicants have fraudulently with intention to cheat and in order to cause wrongful loss to respondent no. 2 and wrongful gain for themselves have committed the offence of cheating punishable u/s 420 IPC. After enquiry under XV Cr. P.C., the learned Magistrate has taken cognizance against applicants for the offence punishable u/s 420 IPC vide order dated 7.3.2008.
(3.) LEARNED counsel for the applicants have vehemently argued that indisputably the applicants and respondent no. 2 were carrying on business, so the transactions in question are commercial and as such no criminal liability can be fastened on the applicants and the proceedings of complaint are misuse of process of the Court. Per contra learned counsel for the respondent no. 2 has contended that the documentary evidence available on record clearly show that the intention of the applicants was dishonest at the time of making promise and representation to the complainant at Meerut on 17.3.2003 and they have cheated him by not issuing Form 'H' pertaining to the sales made to them from 13.10.2003 to 31.3.2004, whereby penalty of Rs. 2,35,083.00 had been imposed by the Trade Tax Department on respondent no. 2.;