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CR.MA/710720/2003 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7107 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRAHALADRAI
GUPTA,MANAGING DIRECTOR OF KAPIL ROLLER MILLS & 2 - Applicant(s)
Versus
BABUBHAI
UMEDBHAI PATEL & 1 - Respondent(s)
=========================================================
Appearance :
MS
AVANI S MEHTA for
Applicant(s) : 1 - 3.
MR AJ SHASTRI for Respondent(s) : 1,
MR L
B DABHI, ADDLPUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 16/04/2010
ORAL
JUDGMENT
The
short facts of the case appears to be that a criminal complaint being
No.3088 of 1998 was filed by the complainant respondent No.1 against
the accused for the offences under Sections 406, 420 and 114 of the
Indian Penal Code on the accusation that the complainant had placed
the order of food for cattles weighing ten ton (one truck) and the
amount was also paid of Rs.41,772/- vide D.D.No.193995 dated
05/01/1998 of Bank of Baroda, Kulpada Branch, Surat. After receipt
of the amount the goods were not supplied and, therefore it is
alleged in the complaint that the accused had dishonest intention of
appropriating the amount from the very beginning, hence alleged
offence has been committed.
2. Learned
Magistrate initially examined the complainant and issued process.
Thereafter, the accused appeared before the learned Magistrate and
filed an application for discharge on the ground that the order was
placed with the broker and there are earlier transactions with the
complainant and therefore no offence is committed. Learned Magistrate
vide order dated 10/03/2003 below the said application for discharge
found that unless the evidence is recorded it would not be a case to
discharge the accused at this stage and therefore dismissed the
application. Under these circumstances the present petition for
quashing of the complaint.
3. Heard
Ms.Avni Mehta, learned Counsel for the applicant and Mr.Shashtri
original complainant respondent No.1 and Mr.L.B.Dabhi, learned
APP for respondent No.2-State of Gujarat.
4. The
accusation made in the complaint for acceptance of the money and not
supplying of the goods, prima-facie cannot be said as no offence
whatsoever has been committed. The defence as to be canvassed either
before the learned Magistrate or before this Court in the present
proceedings cannot be gone into in a petition under the provisions of
Section 482 of the Code of Criminal Procedure at the time of quashing
of the complaint. No material is produced to show any abuse of
process of law. The only contention raised is that it is essentially
a civil dispute for which the criminal complaint could not have been
filed. It is not necessary that if civil wrong is committed there
would not be any criminal wrong. Certain action may be such which
may attract both the proceedings. If criminal proceedings are
initiated by way of a substitution of civil proceedings or with a
view to pressurize in the civil proceedings or with a view to short
circuit the civil proceedings, it may result into abuse of process of
law and this Court may discourage the same. Such does not appear to
be in the present case.
5. Hence,
the petition is merit-less, therefore dismissed. Rule discharged.
I.R. stands vacated.
(JAYANT
PATEL, J.)
sompura
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