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TMI Blog2019 (6) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... es under Sections 403, 405, 463, 464, 477A, 192, 193, 120A 120B, 201, 202, 425, 426 read with Section 34 of Indian Penal Code. The complaint was filed on 09022001. 3. The brief allegations spelt out in the complaint are as follows. a) Accused No.1 is proprietor of M/s. Electron Industries Ltd. (Accused No.13). He de facto manages affairs of Patel Polymers Pvt. Ltd. (Accused No.6). He is also director of Electron Industries Ltd (Accused No.8), Accused No.2, 7 and 11 are cousins of the Accused No.1. They are directors of Accused No.6 and Magic Creation Pvt. Ltd. (Accused No.10). Accused No.12 is director of Accused No.10. Accused No.4 and 5 are employees of accused No.1 and his associated companies. Accused No.14 is a banking company. Accused No.15 is employee of Accused No.14. Accused No.3 is the Chartered Accountant. b) The complainant was conducting proprietary business of trading in Textile Chemicals and other materials in the name and style of Perfect Trading. In the year 1990 complainant joined Electron Textile Exports Pvt. Ltd. as marking executive. The said company is now known as Patel Polymers Pvt. Ltd. (Accused No.6) The accused No.6 is a manufacturer and tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . h) The accused hatched a conspiracy and in terms of the conspiracy one blank cheque No. 094530 drawn on Bank of India, Andheri signed inadvertently by the complainant and left in the office at 230, New Apollo Industrial Estate, Mogra Lane, Andheri (East) Mumbai was forged by Accused No.4 at the behest of Accused No. 1, 2, 6, and 8 and the sum of Rs. 71,17,132.90/ was incorporated in the cheque by incorporating the name of Patel Polymers Private Ltd. as payee of the said amount. The cheque was allegedly issued on 02092000. The Accused also forged letter head of M/s Perfect Trading by preparing confirmation latter dated 02092000 to show that M/s Perfect Trading was due and liable to pay the aforesaid amount against business transactions allegedly carried between Perfect Trading and Accused No.6. i) Accused No.6 filed a Criminal Case bearing No. 538/2000 in the Court of Judicial Magistrate First Class, Dahanu. The letter dated 02092000 was part of the said complaint. The said letter was fabricated. The business of Perfect Trading was dissolved on 31032000. j) The Accused No.1 to 4, 10, 11, 12 had also stolen signed cheque bearing No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to complainant goods during the period of October 2000 to December 2000 as per the requirement and orders placed by the complainant. The petitioners have relied upon the copies of relevant invoices of the goods delivered and received by the complainant which has been annexed to the petition. In respect of the said supply of goods, the amount of Rs. 92,40,000/ was due and payable by the complainant issued Cheque No.094531 dated 16122000 for the amount of Rs. 92,40,000/ in favor of the petitioners. The said cheque was issued in favor of the petitioner No.1 Magic Creation Private Ltd. On presentation the same was dishonoured on 03012001. The intimation of dishonour was received from the bankers on 03012001. The petitioners therein through their advocate sent notice dated 08012001 calling upon respondent No.1 to make the payment of the amount under the said cheque. The notice was received by respondent No.1 and he also forwarded reply dated 31012001. The petitioner No.1/Accused No10 filed Criminal complaint before the Court of Metropolitan Magistrate at Ahmadabad which was registered as Criminal Case No.342 of 2001 on 0902 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 in the City Civil Court at Ahmadabad and had obtained exparty decree against the complainant. However, the said decree was set aside and the complainant was granted an unconditional leave to defend the said suit. In the meanwhile the exparty decree came to be transferred for execution. Execution proceedings were filed in the Court of Civil Judge Senior Division at Thane which are pending. It is further stated that subsequent to filing all the petitions, the aforesaid Summary Suit was filed. The complaint makes out essential ingredients of offence of Criminal misappropriations of property, breach of trust, making false document, falsification of account, making false statement, causing disappearance of evidence, giving false information to screen offender, mischief, fabricating false evidence and Criminal conspiracy. Accused had acted collusively with mensrea for committing several offences. The powers conferred by under Article 227 of Constitution of India are required to be exercised sparingly and only in appropriate cases. There are serious material question of fact which ought to be tried by the Metropolitan Magistrate. The complainant did not have business tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had lodged complaint alleging loss of cheque book. It is alleged that signed cheques were misused by the accused. 13. I have perused the documents on record, the cheque bearing No.094531 dated 16122000 was issued for an amount of Rs. 92,40,000/. The cheque has been dishonoured. The cheque contains undisputed signature of respondent No.1 and the stamp of Perfect Trading. The said cheque was issued in favour of Magic Creations Pvt. Ltd. (Accused No.10). The endorsement on the cheque indicates that cheque is returned on the ground, unable to obtain payment of the cheque for the reasons given in the Memo attached to the cheque. The reason for returning cheque mentioned in the memo is "funds insufficient". According to the complainant he had issued instructions to the banker for freezing of account. It is also alleged that the bank was informed about loss of cheques. However, the cheque was not dishonoured on account of stop payment or freezing of account. It is also pertinent to note that, the notice of dishonour was issued to the complainant. In reply dated 08012001 it was contented that Cheques were lost and the same were misused. The petitioners have relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Bank of India for freezing account. The said letter is 27092000, which was received by bank on 28092000. Thereafter complainant forwarded letter dated 25102000 to Bank of India alleging forgery of cheque. Accused No.6 was also forwarded letter contanding that, no cheque was issued by complainant and called upon Accused No.6 to explain how cheque was received by them. The said letter was dated 25102000. Thus the aforesaid letters/complaints were forwarded after dishonour of cheque No. 094530. The letter dated 25102000 was replied by Accused No.6 through their advocate denying allegations and stating that the said cheque was issued by respondent No.1 alongwith covering letter dated 02092000 whereby he admitted and acknowledged that the outstanding amount as per his record is payable to them. The learned Magistrate has mechanically issued process for all the offences stated in the complaint against all accused. The proceedings smack malafide. 15. The fact remains, there was no amount in the account of the complainant and the cheques were dishonoured for insufficient funds. The proceedings under Section 138 were initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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