JUDGMENT
B.R. Arora, J.
1. This petition under Section 482 Cr.P.C. has been filed by the petitioner for quashing the order for taking the cognizance against the petitioners as well as for quashing the proceedings pending against the petitioners in Criminal Case No. 220 of 1989 Pramod Kumar Bedi v. Kalyan Sundaram Cement Industirics Limited and Ors. in the Court of the Additional Chief Judicial Magistrate Bikaner.
2. Pramod Kumar Bedi, Executive Engineer, Indira Gandhi Nahar Pariyojna (Procurement Division) Purchase Circle, Bikaner, on behalf of the State of Rajasthan, filed a complaint against M/s. Kalyan Sundaram Cement Industries Limited and Sarvashri Sanjay Kumar Modi, SuniJ Gautan and Paras Kuhar for offences under Section 133 of the Negotiable Instruments Act and Sections 420 and 120B of the Indian Penal Code. It has been alleged in the complaint that the complainant invited tenders on March 2, 1989, for supply of cement. Several tenders including M/s. Kalyan Sundaram Cement Industries Limited submitted their tenders and after negotiation, the tender of M/s. Kalyan Sundaram Cement Industries Limited was accepted on March 29, 1989 for supply of 15000 metric tones of cement to the complainant. The accused No. 2 to 4, on behalf of the accused No. 1 asked the complainant that if the payment of 23% of the cement is made in advance, which comes to Rs. 50,61,300/- then the supply of the cement will be made. It was, also, agreed that if the complainant made payment of Rs. 50,61,300/- then it will be tip responsibility of the accused No. 2 to 4 for the supply of the cement. In pursuance to this assurance, a bond was, also, executed by the accused No. 2 and 3 on April 10, 1989 which is Annexure-5 on record. Condition No. 3 of the and reads as under:
Condition No. 3 We have also given three post-dated cheques No. as below dated, with the stipulation that in case on default in supply of the cement, the Governor would be authorised to get these cheques encashed and recover the amount of advance, and we shall keep sufficient amount in our accounts so that these cheques may be encashed.
Cheques No. 1761455 dt.12.5.89
No. 1761456 dt. 12.6.89
No. 1761457 dt. 12.7.89.
Alongwith this bond, the accused No. 2 and 3 enclosed three deques for an amount of Rs. 16,83,100/- each, dated 12.5.89, 12.6.89 and 12.7.89, drawn at Canera Bank, Jaipur. These cheques were to be adjusted against the advance made by the complainant if the supply of the cement is not made by M/s Kalyan Sundaram Cement Industries Limited. The accused No. 2 to 4, thus, induced the complainant to make payment of Rs. 50,61,300/- which the complainant made by Demand Draft dated April 13, 1989. As per the bond, the accused No. 1 was to supply 15000 metric tonnes of cement within three months starting from April 13,1989 and in each month supply of 5000 mertic tonnes of cement was to be made, but the accused did not supply the cement as agreed to. As the supply of even a single bag of cement was not made by the accused, therefore, the Junior Engineer Shri Ravidra mathur was sent to Banswara to enquire, about the matter and he reached there on June 3, 1989, and found that the factory of the accused was closed and no cement was available in the factory. He, therefore, met its General Manager and the Production Manager, but no satisfactory reply was given by them. As the accused did not supply the cement as agreed to and the factory was closed, the complainant, therefore, sent the second cheque for encashment to the bank on June, 13, 1989, which was dishonoured and returned by the bank. It was further alleged in the complaint that the accused were in the know of the thing that they are not in a position to supply the cement and inspite of that, they conspired together and induced the complainant to part-with an amount of Rs. 50,61,300/- and the accused gave three post dated cheques of Rs. 16,87,100/- each, which they clearly knew that they would be dishonorued and will not be encashed. Thus, they cheated the complainant and thereby dishonestly induced the complainant to pay an advance of Rs. 50,61,300/- and this caused wrong full loss to the complainant and wrongful gain to the accused. The accused have thus, committed an offence punishable under Section 420 and 120B IPC and under Section 138 of the Negotiable Instrument Act. It was, therefore, prayed that the accused No. 1 to 4, who have, thus, committed the offence under Section 138 of the Negotiable Insturments Act, as well as under Sections 420 and 120B of the Indian Penal Code may be tried and be adequately punished for the said offences. The learned Magistrate, by his order dated August 26, 1989, took cognizance against the accused under Section 138 of the Negotiable Instruments Act as well as under Sections 420 and 120B IPC and issues Warrants of Arrest. It is against this order, passed by the learned Additional Chief Judicial Magistrate, Bikaner taking cognizance against the petitioners that the present petition under Section 482 Cr.P.C. has been filed. The accused have, also, prayed that the proceedings pending before the learned Additional Chief Judicial Magistrate, Bikaner, may, also, be quashed.
3. Heard learned Counsel for the petitioners and the learned Public Prosecutor.
4. It is contended on behalf of the petitioners that on the facts stated in the complaint, the documents accompanied thereto and so also the contents of Annexure-4, the agreement, the contents of the Bond Annexure-5, the documents Annexures-18, 20 and 24 and the notices and the replies thereto, no offence under Section 420 IPC is made out against the accused petitioners. It has been further submitted that from the complaint, as well as from the documents, no offence under Section 138 of the Negotiable Instruments Act is, also, disclosed. It has further been argued that there is no prima facie evidence on record, from which it can be said that the petitioners No. 2 and 3 and the petitioner No. 4 the Directors of the company, Paras Kumar, are vicariously liable in this case. Lastly, it was contended that in view of the fact that the petitioner company has been declared as a sick company under Section 3 of the Sick Industries and Companies Act, the prosecution against the petitioner is barred. The learned Public Prosecutor, on the other hand, has supported the order passed by the learned lower Court taking the cognizance and he has further submitted that the facts mentioned in the complaint clearly disclose that a prima facie case to proceed with against the petitioners has been made out as it has been specifically alleged in the complaint that the accused No. 2 to 4 are the persons responsible for the conduct of the business of the company and, therefore, the cognizance against them has rightly been taken.
5. I have considered the rival submissions made by the learned Counsel for the parties and perused the order passed by the learned lower Court as well as the record of the case.
6. From the perusal of the record, I am of the view that there is sufficient materials on record, on the basis of which the case against the accused to proceed with has been made out. At the time of taking the cognizance, the Court has only to see that : whether from the complaint, the evidence of the witnesses and the documents on record, any prima facie case to proceed with against the accused is made out? If there is a prima facie evidence to proceed with against the accused than the Court can take cognizance. “Prima facie evidence” means “the evidence that is sufficient to establish a fact or to raise a presumption of the truth of fact unless controverted.” If the accused against whom the cognizance has been taken, have any valid defence available to them then that can be decided by the trial Court at the appropriate stage. The accused can agitate their grievances and raise objections before the learned Magistrate and the learned Magistrate will consider all those objections raised by the accused and if after considering the objections, raised by the accused, the learned Magistrate is of the opinion that no case is madeout, then at the time of framing the charges, he can discharge the accused even, but the cognizance taken by the learned Magistrate cannot be interfered with or quashed by this Court in its inherent powers at this stage. The powers under Section 482 Cr.P.C. cannot be lightly used in quashing the order taking the cognizance and quashing the proceedings when a prima facie case has been madeout against the accused petitioners. The proceedings can be quashed only if the complaint and the materials produced alongwith the complaint, do not disclose any offence or where the allegations are absurd or inherently improbable or the proceedings are malafide. In the present case, neither the proceedings are malafide nor is there any statutory bar against the petitioner to proceed with and the allegations made in the complaint and the documents produced alongwith the complaint clearly make out a prima facie case against the petitoners to proceed with and the learned lower Court has not committed any illegality in taking the cognizance against the petitioners. The order passed by the learned lower Court cannot be said to be, in any way, illegal or unjust or without jurisdiction. It has been held by the Supreme Court in the case of : the State of Haryana v. Choudhaty Bhajan Lal Judgments Today 1990 (4) 660 as under:
We also give a notice of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rart cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdication on the Court to act according to its him or caprice.
7. In view of the above observations of the Supreme Court, the Court at this stage, while considering the ligaliy or correctness of the order passed by the learned lower Court, taking cognizance, is not required to meticulously examine the evidence or record. The enquiry with regard to reliability or genuineness of the allegations made in the complaint, can be judged by the trial Court and cannot be looked into by this Court in its inherent powers under Section 482 Cr.P.C.
8. In this view of the matter, I am of the view that no case for interference has been made out, and the petition filed by the petitioner deserves to be dismissed. If the petitioners have any defence available to them, including the points raised by them before this Court, the petitioners will be entitled to raise all these objections before the learned trial Court and the learned trial Court will decide the objections at the appropriate time, if so raised.
9. Consequently, the miscellaneous petition, filed by the petitioners, has got no force and the same is hereby dismissed.