HON'BLE AMAR SARAN,J. - (1.) HEARD learned Counsel for the applicant and the learned A.G.A.
(2.) THIS application under section 482, Cr.P.C. has been filed for quashing criminal proceedings arising out of Complaint Case No. 1976/9 of 1991 under sections 420 and 506, IPC pending in the Court of CJM, Muzaffarnagar. The allegations in the case were that the applicant had made an agreement with the complainant to supply him stones, which he had no intention to pay for and, consequently, the applicant had given them a cheque of Rs. 50,000/- while only a balance of Rs. 300/- was there in his account, which showed the applicant's dishonest intention. The said cheque had bounced and, thus, the applicant was said to have committed an offence under section 138, Negotiable Instruments Act and also under sections 420 and 506, IPC. The complaint was filed on 20.6.1991. The CJM, Muzaffarnagar passed an order on 30.7.1991, summoning the applicant under sections 420 and 506, IPC and section 138, Negotiable Instruments Act (for short, NI Act). This order was challenged in a criminal revision No. 115 of 1992, in which an order was passed by the learned IIIrd Addl. Sessions Judge, Muzaffarnagar on 20.12.1992, holding that no offence under section 138, NI Act, was disclosed. However, the applicant was to stand trial under sections 420 and 506, IPC. Against the aforesaid orders, the applicant had preferred the present application under section 482, Cr.P.C. in which the proceedings were stayed by this Court on 8.12.1992.
(3.) THE grounds for challenging the trial under sections 420 and 506, IPC are that essentially it was only a civil dispute between the parties and as a matter of the fact the applicant had stopped payment because of failure of opposite party No. 2 to supply him with the stones which had caused economic loss to him. In my view, such a claim of the applicant, that he had stopped the payment because of non supply of stones and other objections to this effect, are questions of fact which can only be decided by the Trial Court and it cannot be considered in an application under section 482, Cr.P.C. in which jurisdiction this Court is not required to look to the possible defence that could be taken up by an accused. It was further contended by the learned Counsel for the applicant that in any case the dispute between the parties was of civil nature for which no mens rea could have been assigned to him. In my view, the applicant has given a cheque of Rs. 50,000/- when only Rs. 300/- was present in his bank account, and the cheque bounced, as it was likely to do so. Therefore, it is quite apparent that from the very beginning the applicant had the intention of cheating the complainant; at least, this conclusion can prima facie be drawn on the facts of the case, and there is no law stating that only because a civil suit can be filed requiring a party to make payment, no criminal case is maintainable even if the goods or other material are taken dishonestly by an accused who does not have the intention to make the payments. Learned Counsel has relied on two decisions of the Hon'ble Supreme Court in this connection. The first case is Ajay Mitra u. State of M.P and others. 2003 (2) J.Cr.C. 889 (SC). The facts of this case were that M/s. Cadbury Schweppes Beverages Company had awarded certain bottling contract to the complainant, Sanjiva Bottling company. It has also required the bottling company to indulge in certain investments including making improve ments in their manufacturing plant. However, subsequently the agreement had been terminated. The appellants Coca Cola (India) and Atlantic Industries, in whose favour agreement was later on executed, approached the Hon'ble Supreme Court. So far as the appellants were concerned, they had made no representation to the complainant for incurring expenditure for improving the bottling plant they were not even in the picture at this stage. Hence the Apex Court observed that it could not be said that as a result of misrepresentation practiced by the appellants, the complainant had been forced to do an activity which had caused wrongful loss to him. Certainly, there is no proposition in this case that if the complainant can seek remedy against an accused in a Civil Court, he is barred from filing a criminal complaint even if the facts prima facie disclose a criminal offence. Likewise, in the case of U. Dhar and another v. State of Jharkhand and others 2003 (1) J.Cr. C. 700 (SC). the accused were facing trial under sections 403, 406, 420 and 420 and 120-B of IPC. Essentially in this case the criminal complaint had been quashed on the ground that the allegations in the complaint were that certain money had been paid by principal employer to the contractor. The sub-contractor, complainant claimed that the said money had been misappropriated by a contractor. The Court held that the contract of the principal employer was completely separate from the contract between the sub-contractor and the contractor, and the money paid to the principal employer to the contractor could never be considered to be the money of immovable property of the complainant's sub-contractor and, thus, the contractor could not be said to have misappropriated any money. It had de scribed this dispute for recovery of money to be purely civil dispute.;