JUDGMENT
T.K. Chandrashekhara Das, J.
1. None represented for the petitioners.
2. This writ petition arises out of complaint filed by the 2nd respondent before 33rd Court, Ballard Pier, Bombay being Case No. 115/S/ of 1991 and the process has been issued against the petitioner.
3. I have closely examined the complaint filed by 2nd respondent in this case. It is alleged that the petitioners are Firm and the 1st respondent was his authorised stockist of M/s, Larsen and Toubro Co. Ltd. for dealing with its products. It is alleged that the petitioner placed orders with the complainant for the supply of 4 No. of L. & T. make 400A manually operated draw-out breaker with cradle equipped without DNI magneto Thermal setting 3000-4000A and 18 way Secondary isolating contacts. It is further alleged that the second respondent sold to the petitioners and supplied the same under their Invoice No. 51450 dated 13th September, 1989 for Rs. 86,136.90 Ps. and the goods were sent to the petitioners at Ambattur through Transport Company M/s. Transport Corporation of India Ltd. When the goods reached to the petitioners, they failed to take delivery of the goods discharging the bank documents. Several letters have been sent by the second respondent which became futile as the petitioners did not take delivery of the goods. On account of this, the second respondent had to rebook the goods and sustained loss of Rs. 47,886/- and they have to pay Central Sales Tax of Rs. 8,382/- and also interest. Notice of demand of this amount of loss was sent on 15th April, 1991 to the second respondent which has failed to produce any results. It is in this circumstance, instead of filing suit against first respondents, the petitioners straight way went to the Magistrate and filed this complaint. On close perusal of the complaint, it does not contain even an allegation of any act that has been committed by the petitioner for defrauding the second respondent or doing anything with dishonest intention. In the absence of such allegations, leave alone any materials, for constituting the offence under Section 420 against the petitioner action of Magistrate issuing summons is therefore, held to be an abuse of process of Court.
In the result, writ petition is allowed.
Rule made absolute in terms of prayer Clause (a).
No order as to costs.
Prayer Clause (a) :
That this Honourable Court may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate Writ, Order or direction under Article 227 of the Constitution of India, calling for the records and proceedings pertaining to Complaint being Case No. 115/S of 1991, filed in the Court of Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay and after going through the legality and propriety thereof to quash and set aside the same.