JUDGMENT
J.G. Chitre, J.
1. The petitioners are hereby assailing the correctness, propriety and legality of the order passed by the learned Judicial Magistrate, First Class, Ichalkaranji in Criminal Case No. 372 of 1997 by which he issued process against the petitioners for the offence punishable under Section 420 read with 34 of the Indian Penal Code.
2. Respondent No.2 alleges that the petitioners “opened a khata” with respondent No.2 and purchased cloth by informing him that they were having a partnership firm at 288, Kalbadevi Road, 4th Floor, Mumbai-400002. Respondent No. 2 was to recover a sum of Rs. 5,84,180/= from the petitioners by the end of 31.3.1997. He issued a notice to them through their Advocate Shri. N.R. Toshsnawal, a resident of Ichalkarnaji. The notice which was sent at the Mumbai address was received back by respondent No.2 as it was not accepted by the present petitioners. However, the notice which was sent to them at Balotra was received by them. As alleged by respondent No. 2, the petitioners did not pay the recoverable sum to him. Hence, he filed a criminal complaint as mentioned above in the Court of the learned Judicial Magistrate, First Class. Ichalkaranji.
3. Shri. Jain submitted that no offence has been made out by the allegations mentioned in the complaint making out a case of cheating and, therefore, the learned Judicial Magistrate committed an error of taking cognizance of the said complaint and issued process against the petitioners. He submitted that the transaction is of a civil nature and on that count also the learned Magistrate committed error of issuing process against the petitioners. He prayed that the said prosecution be quashed.
4. Shri. Saste, the learned A.G.P. appearing for the State of Maharashtra, tried his best to justify the said prosecution.
5. Section 415 of the Indian Penal Code provides “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission caused or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
An explanation has been provided which provides “A dishonest concealment of facts is a deception within the meaning of this section. Offences indicated by the provisions of Sections 416, 417, 418, 419 and Section 420 of the Indian Penal Code are revoling around the definition “cheating” provided by Section 415 of the Indian Penal Code, thereby it is the duty of the Magistrate before whom the complaint has been filed by the original complaint to apply the judicial mind and to find out whether a prima facie case has been made out to indicate the commission of the offences indicated by the provisions of Section 416, 417, 418, 419 and Section 420 of the Indian Penal Code. It is obligatory on such Magistrate to find out whether the ingredients have been indicated by the complaint presented before him as shown by the provisions of Section 415 of the Indian Penal Code. He has to find out whether the complaint is making out a case of “deceit”, intentionally inducing” “fraudulently or dishonestly inducing”. These ingredients are to be indicated by the complaint which has been presented before such Magistrate and the allegations made in the complaint should make out a prima facie case of “cheating” as indicated by the provisions of Section 415 of the Indian Penal Code. If the complaint so presented before him is incapable of making out such a case, the transactions indicated by such a complaint would be falling within the jurisdiction of the civil Court and would be treated as transactions of civil nature.
6. The Court of the learned Magistrate before whom such a complaint is made, has to see very cautiously by application of judicial mind that the Courts are not used for the purposes of recovering the amounts payable by the purchasers to the seller without paying the Court-fee stamp which is to be paid while presenting the complaint for suing a person in civil jurisdiction of the Court. He has to be on guard to see that the criminal Court are not used for the purposes of recovering such amounts which are recoverable through civil Courts by presenting suits which are with full payment of Court fee. A litigant cannot be permitted to make a go by to payment of Court stamp fee and to recover their amounts through criminal Court by using its criminal jurisdiction which indirectly makes a person to feel on toes.
7. After carefully examining the complaint, this Court comes to the conclusion that the transactions alleged are nothing but transactions of “Khata”. It is a matter of “Khata baki” suit and nothing more than that. In fact, the complaint has been so arranged that by its look it appears to be a complaint of Khata baaki” suit.
8. The learned Magistrate has obviously committed error in not properly advering himself to the main factes revealed by the complaint. It has fallen in error of law in entertaining the complaint revoling around transactions of civil nature. He has erroneously issued the process against the petitioners and, therefore, it is necessary to quash it by issuing the writ of certiorari and exercising the jurisdiction as indicated by Section 488 of the Code of Criminal Procedure, 1973. Criminal Case bearing No. 372 of 1997 pending in the Court of the learned Judicial Magistrate, First Class, Ichalkaranji stands quashed. The petitioners need not appear before that Court. Rule made absolute.
