ASHA ARORA,J. - (1.) The petitioners have approached this Court for quashing of the criminal proceeding being Complaint Case no. 3592 of 2005 pending before the learned Judicial Magistrate 9th Court Alipore. The orders passed in connection with the aforesaid complaint case including the order dated 29th July 2005 whereby the learned Magistrate issued process under 420 IPC against the petitioners have also been assailed.
(2.) Learned counsel appearing for the petitioners strenuously argued that the allegations in the petition of complaint do not disclose the necessary ingredients of the offence under section 420 IPC. Referring to the copies of the letters of the petitioner addressed to the opposite party, learned counsel sought to impress that there is no indication of dishonest intention from the inception of transaction. It is contended that after 13 transactions the opposite party demanded Sales Tax Form H from the petitioner who, being an unregistered dealer had no liability to issue any Sale Tax Form. It has been argued that the copies of letters annexed at page 43, 44, 52 and 53 do not indicate that there was any deception or dishonest inducement on the part of the petitioner. Since the complaint and the documents relied upon do not disclose a prima facie case for the offence of cheating, the learned Magistrate was not justified in issuing process. To fortify his submissions learned counsel for the petitioners relied upon the case of Dr. Sharma's Nursing Home v. Delhi Administration and Others reported in (1998)8 Supreme Court Cases 745, Anil Mahajan v. Bhor Industries Ltd. and Another reported in (2005)10 Supreme Court Cases 228 and All Cargo Movers (India) Private Limited and Others v. Dhanesh Badarmal Jain and Another reported in (2007)14 Supreme Court Cases 776. Referring to the case of G. Sagar Suri and another v. State of U.P. and others reported in (2000)2 Supreme Court Cases 636 learned counsel for the petitioner urged that even when an application for discharge of the accused in pending with the trial Court, the accused can approach the High Court under section 482 of the Code of Criminal Procedure, 1973 or Article 227 of the Constitution to have the proceeding quashed when no offence has been made out against him.
(3.) Repudiating the above submissions, learned counsel for the opposite party/complainant argued that the petitioner's approach is premature since the case in the trial Court is at the stage of evidence before charge under section 244 of the Code of Criminal Procedure, 1973 where two witnesses have already been examined and several documents have been exhibited. It is pointed out that the petitioner could avail of section 245 of the Code of Criminal Procedure, 1973 at the appropriate stage. On the merits of the application, relying upon Rajesh Bajaj v. State NCT of Delhi and others reported in 1999(3) Supreme Court Cases 259 and M/S Indian Oil Corporation v. M/S NEPC India Ltd. and Others, learned counsel for the opposite party submitted that the complaint is not required to verbatim reproduce all the legal ingredients of the offence alleged. It is sufficient if the necessary factual foundation is laid therein. A criminal proceeding cannot be quashed merely on the ground that a few ingredients of the offence alleged have not been stated in detail. The complaint has to be read as a whole but without examining the merits of the allegations. Inviting the attention of the Court to the copies of correspondence between the parties, it has been argued on behalf of the opposite party that the petitioner was fully aware of the terms and conditions which were specifically mentioned in the offer/quotation letter of the opposite party dated 28/1/2003. Referring to the copy of letter dated 28/1/2003 annexed to the affidavit in opposition at page 10 learned counsel for the opposite party drew my attention to clause (ii) of the terms and conditions which reads as follows: "Terms and Conditions: i) The above consignment value is after deduction of all expenses on freight documentation, bank charges and agent commissions(2%). ii) The prices quoted exclude WB Sales Tax (8.8%) as the consignment is for export. Sales Tax Form 'H' is to submitted after the end of the current financial year. In case of non-submission of the Form H the additional Sales Tax amount shall have to be paid. iii) Above prices are Ex-works. iv) Payments 30 days from delivery date. v) Delivery 8-10 weeks after receipt of confirm order. vi) Validity 30 days w.e.f 28.01.03. Kindly acknowledge receipt and approval of the same by duly stamped and signed purchase order.";