G.S. Tyagi vs State of Uttar Pradesh and Another

G.S.N. Tripathi, J.—This is a petition u/s 482, Code of Criminal Procedure for quashing the proceedings In complaint case No. 784/94 Dharampctl Gupta v. G.S. Tyagi u/s 138 of Negotiable Instrument Act and Section 420 of the I.P.C.P.S. Kichha, District Nainital pending in the court of Munsif Magistrate Rudrapur Nainital.

Respondent No. 2 filed a complaint in the Court of Munsil Magistrate, Rudrapur, District Nainital (Annexure 7 to the petition). The main allegations are that the Petitioner, who is Director of Meerut Agra Mills Ltd. purchased rice worth Rs. 11.82,825 in December, 1992 and issued two cherubs in favour of the complainant (Respondent No. 2). The first cherub was for Rs. 6,32,825. The second cherub was for Rs. 5,96,300. The first cherub is not in dispute. The amount of the second cherub was not paid as the Petitioner had closed his account in his Bank. On an information, a notice dated 15.10.93 was sent through his counsel to the Petitioner calling upon him to make the payment within 15 days or face legal consequence. That was not done by the Petitioner. Therefore, the aforesaid complaint was filed on 24.3.94 imputing male fide and bad motive on the part of the Petitioner.

The defense mainly is that after the issuance of the cherub, intimation was received that the quality of rice supplied by the Respondent No. 2 was not up to the mark and it was found by the International Inspection Agency as unfit for human consumption. Therefore, the Petitioner stopped the payment, because his payment itself had been stopped by the buyer firm in Romania. So, it cannot be said that there existed any bad motive or dishonest Intention on 12.7.93 while issuing the cheque.

The main point for consideration in this case is as to whether there was a bad motive right from the very beginning to make payment. Annexure 1 is the inspection notice made by the International Agency having its office in Switzerland showing that out of 7,79,949 bags, 3897.450 metric tons goods were found to be unfit for human consumption. This is the inspection note dated 25.5.93. M. M. Exports, through whom the Petitioner had exported the goods, also informed the Petitioner by the letter dated 6.8.93 (Annexure 2 to the petition) that the merchandised was not found to be fit for human consumption. Therefore, the money had been withheld by the buyer firm. Thereafter, the Petitioner sent a letter dated 9.8.93 (Annexure 2 to the petition) that the payment by the Romanian buyer firm had been stopped as the goods were found to be unfit for human consumption. Thereafter, a notice dated, 15.10.93 was received from the Respondent through his counsel showing that since the coequal was not honored, either the Petitioner should make payment within 15 days or face legal consequence.

These facts are not denied in this case. Therefore, if the Petitioner stopped payment after receipt of an intimation that the goods or part of the goods were found to be unfit for human consumption, which information was naturally received after 12.7.93, it will not be just and judicially permissible to infer that even on the date of issue of the Cheque Le. 12.7.93, the Petitioner had a dishonest or male fide intention not to make payment to the Respondent No. 2.

Under these circumstances without going deeper into matter, I find that the conduct of the Petitioner can be nothing but just and business like. Hence no criminal motive can be imputed to him. In absence of any motive and means tea the prosecution of the Petitioner was not permissible in law.

This appears to be a case of civil nature, in which liability shall be fixed and damages assessed according to the provisions of civil law. Sullied it to say that the criminal courts should keep their hands off when the nature of transaction is purely civil in nature.

Under these circumstances, the petition is allowed. The proceedings in Complaint Case No. 784/94, Dharampal Gupta v. G.S. Tyagi. u/s 138 of Negotiable Instrument Act and Section 420 of the I.P.C., P.S. Kichha District Nainital pending in the Court of Munsif Magistrate, Rudrapur, Nainital are quashed.