Decided on January 04,1995

RAMASIS SHAW Respondents

Cited Judgements :-



N.K.Bhattacharyya, J. - (1.)By this revision the accused petitioner has come up before this Court praying for quashing the Complaint Case No. 175 C of 1993 pending in the court of the learned Judicial Magistrate, 2nd Court, Howrah, and also for setting aside the order dated 2nd February, 1994 passed by the said learned Magistrate in the said case.
(2.)The fact silhouetted behind this case is that the opposite party 1 herein filed a petition of complaint before the learned Chief Judicial Magistrate, Howrah, alleging, inter alia, that the complainant is the proprietor of M/S. R.A. Pipe Fitting Co. of 12/5, Musalman Para Lane, P.S. Bantra, District Howrah, and deals in the business of iron pipe and pipe fittings. The complainant opposite party no. 1 received a letter from the accused petitioner herein on 11.10.91 asking for delivery of certain materials on terms that payments should be deferred by ninety days from the date of the delivery of the materials. The complainant opposite party met the accused petitioner on 27th July, 1991 at Madurai and talked about the letter for supply of the materials. On believing the representation of the accused petitioner, the complainant opposite party after coming back to Howrah started supplying pipe fittings on 11.11.91 and submitted his bills for payment. The complainant opposite party was not paid the price of the materials supplied till 11.12.92 and being apprehensive, the complainant opposite party made tagids for payment and after deferring such payments the accused petitioner made over three cheques bearing No. 093977 dated 15.7.92 for Rs.50,000/- 093978 dated 30.8.92 for Rs. 50,000/-, and 092979 dated 15.8.92 for Rs. 52,000/- only on Indian Bank, T.V.S. Nagar Branch, Madurai, in favour of the complainant opposite party. The said three cheques were tendered to the Bank through the Federal Bank Limited, Howrah Branch at Bantra, Howrah, but the cheques amounting to Rs. 50,000/- were returned as the amount was not duly covered. The third cheques was returned with the endorsement that the accused asked for stopping payment. By a letter dated 14th October, 1992 the accused petitioner promised payment but as the payment was not made, again she complainant opposite party made tagid by a lawyer's letter dated 2nd November, 1992. From time to time the accused petitioner by different letters promised payment and on 18.1.93 the complainant opposite party demanded immediate payment of money from the accused petitioner. The accused petitioner denied all transactions. Hence the petition of complaint. Summons was issued after taking cognizance by the learned Magistrate. Evidence was gone into and the learned Magistrate framed a charge against the accused petitioner under Section 420 of the Indian Penal Code, though prayer was made before the learned Magistrate for discharge of the accused petitioner as there was no ingredient of cheating as contemplated under Section 420 of the Indian Penal Code.
(3.)Appearing for the petitioner, Mr. Tapan Kumar Dutt, learned Advocate, contended by referring to the petition of complaint and the deposition of the witnesses that the petition of complaint and the deposition do not show any initial inducement by the accused petitioner to the complainant opposite party and as such the ingredient of Section 420 I.P.C. being absent the proceeding should be quashed. He further contended that at the initial stage there was no inducement. According to him, as there was no case of initial inducement by the amused petitioner to the complainant opposite party, the proceeding for tile offence under Section 420 I.P.C. is not competent and liable to be quashed. In this connection, he referred to some decisions, to wit, 1983 Crl LJ 106, V.V.L.N. Chari v. N.A. Martin (Kerala), 1987 CA LJ 1446, G.K. Mahanty v. Pratap Kishore Das (Orissa), AIR 1974 SC 301, Hari Prasad Chamaria v. Bishnu Kumar Surekha, and 1991 Crl LJ 1603 Radha Raman Sahu v. Trilochon Nanda (Orissa). Mr. Dutt contended that in view of the ratio that has been deduced in those cases that in order to constitute an offence under Section 420 I.P.C. if there is no initial inducement by the accused to the complainant then no offence under Section 420 I.P.C. is constituted.

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