Baldev Krishan Dua v. State Of Punjab & ORS
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/0 5& "8 "2. I have considered the averments of the prosecution and the ld. defence counsel and have gone through the file carefully. It is pertinent to note that in the entire allegations contained in the FIR and the supplementary statement made by the complainant, there is no allegation of entrustment of paddy by the firm of the complainant to the firm of the accused. In fact, as per the version of the complainant, both the firms of the complainant and the accused had business dealings over a period of time and the complainant firm
& supplied paddy to the accused firm and maintained regular accounts regarding the goods supplied and the payment received. In these circumstances, offence under section 406 IPC cannot be made out.
3. The prosecution has prayed that the accused firm took delivery of paddy from the complainant on false pretences. Even though the accused did not intend to make payment for the consignment of paddy delivered by the complainant firm to the accused. The prosecution claimed that the initial payments were made by the accused to the complainant only in order to create trust and thereafter, the accused betraved the trust reposed by the complainant firm and failed to make payment. In these circumstances, the prosecution has claimed that the offence under section 420 IPC is made out in the present case.
4. I have heard the contention of the prosecution. It is pertinent to note that the complainant firm has brought on record the account statement of firm of the accused maintained by the firm of the complainant during the period from 1.4.2001 to 8.2.2005. The perusal of the statement of account shows that consignments of paddy were regularly received by accused from the complainant from time to time and payments were made by the firm of the accused to the complainant on various dates, which were credited by the firm of the complainant to the accounts of the accused. So, that during the financial year, 2001 from 1.3.2001 to 30.3.2002, the firm of the accused received paddy for the amount of Rs.47,51,897-93 ps and made payment of the amount of Rs.7,82,221-38 ps to the firm of the complainant.
The firm of the complainant duly credited the payment in the account of the firm of the accused, so that at the end of the financial year 2002-02, a payment of Rs.39,69,676/- became outstanding due from the accused to the firm of the complainant. During the financial year 1.4.2002 to 4.2.2003, further consignment of paddy were delivered by the firm of the complainant to the accused, so that a sum of Rs.42,59,198-15 ps became due from the accused towards the firm of complainant. During this year, the firm of the accused made payment of Rs.11,70,000/- to the complainant, which was duly credited to the account of the firm of the accused and thereby a sum of Rs.30,89,190-15 ps became due. During the financial year 1.4.2003 to 30.3.2004 no paddy was supplied by the firm of the complainant to the accused.
issued by the firm of the accused to the complainant during this year. Both the cheques were dishonoured on different dates. During the financial year 1.4.2004 to 8.2.2005 again no paddy was supplied by the firm of the complainant to the accused. Only one payment of Rs.20,000/- was made through cheque to the firm of the complainant by the accused. So that at the end of the financial year 2004-2005, an amount of Rs.30,69,198-15 ps remained as outstanding balance due from the firm of the accused to the complainant.
5. In the light of the above discussion, it is clear that the bulk of the outstanding financial liability was incurred by the firm of the accused during the financial year 2001-2002 and 2002-03. During this period the consignments of paddy were received and payments were made from time to time. From the perusal of the statement of accounts, it is clear that the complainant firm was maintaining a regular and running account of the accused. The firm of the accused was making purchases of paddy from the complainant and was making payment from time to time. However, the firm of the accused failed to clear the account even till 8.4.2005.
In these circumstances, I am of the considered view that the dealings of the complainant and the accused clearly make out that the accused firm entered into a period of financial difficulties, after the financial year 2002-03. There is nothing on record to show that the accused firm from the beginning intended to cheat the complainant and thereby induced delivery of consignment of paddy, even though they had no intention of making payment. In case firm of the complainant had suspected the intention of the accused, then there was no reason for the complainant to have waited for a period of two years from 2003 to 2005 to file the present case, as during the period from 2003 to 2005 only one payment of Rs.20,000/- was made by the firm of the accused to the complainant, even though the liability for the amount of Rs.
30,89,198-15 ps, was outstanding. In these circumstances, I am of the considered view that the present case is one such case where a large amount is due from the firm of the accused to the complainant. It is clearly a case of the firm of the accused being unable to make payments of the outstanding amounts to the firm of the complainant. If all such cases of financial difficulties were to be treated as criminal offences, then commercial transaction would be carried out by the parties always under the fear of criminal prosecution.
' condition would be detrimental to the economic progress of the community. In these circumstances, I am of the considered view that this is clear case of civil liability. г The offence under section 406/420 IPC in my view is also not made out. Accordingly, both the accused are discharged. File be consigned to the Record Room." $
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"8 "10. But on the other hand, respondents stated that in the present case paddy was not entrusted for milling purpose and there was no agreement between the parties. So learned counsel for the revisionist while relying upon the above said law stated that paddy was entrusted to the respondents and they had committed the breach of trust. But it is clear that above said law relied upon by the learned counsel for the revisionist is not applicable to the facts of the present case, because in the above said case paddy was entrusted to the accused for milling purpose. But in the present case revisionist had filed the application that he had to receive Rs.30,69,198.15 paise from the respondents. So revisionist had not stated in his application that paddy was given for milling purpose and respondents had to deliver the rice etc. So the above said law is not applicable to the facts of the present case.
11. Learned counsel for the revisionist stated that respondents had not made the payment and cheated the complainant. He further stated that at the time of framing the charges court had to see a prima facie case. He further stated that from the statements of witnesses and documents placed on the file, a prima facie case is made out against the respondents, but learned trial court had wrongly discharged the respondents. In this respect, he relied upon the law laid down by Hon'ble Supreme Court of India in the case titled as
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wherein, it has been held that framing of charge- Trial court discharging the accused on the ground that the charges against accused are groundless-High Court affirmed the order- Held that trial court failed to restrict its scrutiny within the limits of section 239- at the
stage of framing charge the thing required to be seen is whether prima facie case is made out or not- Whether charge will stand prove or not is to be determined after evidence is recorded- Case remanded to be tried after framing charges. He also relied upon the law laid down by Hon'ble Supreme Court of India in the case titled as # $ "%"%%& ""%%! ' ( ' $ "
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12. But on the other hand, respondents stated that they have not cheated the revisionist. He further stated that if anything is due, then revisionist can recover the same in due process of law. He further stated that court had to frame charges, if prima facie case is made out. He further stated that in the present case no prima facie case is made out. Revisionist got registered the present case on the ground that he had to receive Rs.30,69,198.15 paise from the respondents, but respondents had not returned the amount and cheated the complainant. So from the perusal of the application dated 17.3.2005 filed by revisionist being proprietor of M/S Dua Trading Company, it is clear that there is a dispute of money. So when there is a dispute of balance amount, then revisionist can recover the same in due process of law.
Although, learned counsel for the revisionist stated that a prima facie case is made out in favour of the revisionist and learned trial court had wrongly discharged the respondents/accused. But it is clear that revisionist himself stated in the application that their firm Dua Trading Company had to receive Rs.30,69,198.15 paise from the respondent company M/S Shiv Trading and they have not returned the amount. So from the perusal of the contents of the application, no offence of cheating is made out.
13. Learned counsel for the revisionist stated that he can initiate criminal proceedings also. In this respect he relied upon the law laid down by Hon'ble Supreme Court of India in the case titled as )
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on when the dispute is purely civil in nature still the party chooses to initiate criminal proceeding, the criminal proceeding may quashed. But on the other hand, learned counsel for the respondents stated that in the present case there is a matter of civil nature. So although, learned counsel for the revisionist while relying upon the above said law, stated that a party can initiate criminal proceedings also. But it is clear that from the contents of the application a matter of civil nature is made out. So the above said law is not applicable to the facts of the present case.
14. So from the above said discussion, it is clear that although revisionist stated that offence under section 406 IPC is made out, but revisionist failed to prove that how the offence under section 406 IPC is made out. Similarly revisionist stated that offence under section 420 IPC is made out, but revisionist failed to prove that how the offence under section 420 IPC is made out. Revisionist filed application dated 17.3.2005 for registration of the case. So revisionist had mentioned in the application that their firm had to receive Rs.30,69,198.15 paise from the respondents and respondents had not delivered the amount. So from perusal of the contents of the application dated 17.3.2005 it is clear that there is a dispute of balance amount.
So if anything is due against the respondents, then revisionist can recover the same in due process of law. So it is matter of civil nature. So from the perusal of the order of the learned trial court, it is clear that revisionist failed to reveal any kind of infirmity or illegality committed by the learned trial court, so revision filed by the revisionist is without merits and accordingly stands dismissed. This order of mine will have no bearing on the merits of the case. Parties are directed to appear before the learned trial court on 13.9.2016. Record of trial court be sent back alongwith copy of this order immediately. File of this Court be consigned to the record room."
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