@JUDGMENTTAG-ORDER
Deoki Nandan Prasad, J.@mdashThe petitioner filed this application praying therein to quash the entire criminal proceedings in connection with
Sakchi P.S. Case No. 50 of 2001 which was registered under Sections 406/420, IPC and Section 138 of the Negotiable Instrument Act.
2. The prosecution case as alleged is that the complainant is the broker of Indo Shares & Pin Trade Ltd., Mumbai who is the member of Mumbai
Stock Exchange and he was dealing in shares on line trading of shares by the G. Set (Computer Bolt) provided by Mumbai Stock Exchange after
depositing the security with the accused company. Due to some reasons membership of accused company was terminated by the Stock Exchange
which compelled the complainant to file a claim of Rs. 5,56,555.70 before the Arbitration Committee Stock Exchange, Mumbai being Ref. No.
105 of 2000. A compromise was arrived at in between the parties and the accused Company agreed to settle the matter on payment of total sum
of Rs. 4,58,894.07 ps. The accused-Company issued five post dated cheques on different dates in favour of the complainant which was bounced
with remark ""fund insufficient"". Thereafter, the complainant issued legal notice to the accused for payment of the amount but the same has not been
paid. Accordingly, the FIR was lodged.
3. The learned counsel appearing on behalf of the petitioner submitted that no case under Sections 406/420, IPC made out as well as the
complainant failed to furnish cash security of Rupees ten lakhs with the petitioner against bad delivery which was the condition precedent as per
settlement held before the Arbitration. It is also submitted that later on he said security amount was increased for furnishing of Rs. 50 lakhs but the
complainant failed to furnish the security amount and as such there is no laches on the part of the petitioner for complying of the said order as well
as the whole transaction is of civil nature and as such Sections 406/420, IPC is not made out.
4. On the other hand, the learned counsel appearing on behalf of the opposite party contended before me that admittedly, the petitioner issued five
past dated cheques on different dates amounting to Rs. 4,58,894.07 ps. in terms of full and final settlement arrived at before the Arbitration
proceeding and that amount could not be paid because of insufficient fund in the bank concerned resulting the petitioner-Company cheated the
complainant and knowingly such mischief was done. It is also submitted that the petitioner was in full knowledge and even then the five post dated
cheque was issued and, therefore, the petitioner has committed cheating and the FIR has been lodged rightly against the petitioner and others as
well as the matter is also under investigation and in another complaint case, cognizance was already taken for the offence u/s 138 of the Negotiable
Instrument Act.
5. Obviously, both parties were in business term from before as well as the petitioner also admitted to had issued five post dated cheques
amounting to Rs. 4,58,894.07 ps. even the petitioner had full knowledge that no such money is lying in the account of the petitioner. Moreover, the
matter is still under investigation in this respect and the charge-sheet has not yet been submitted.
6. Having regard to the above facts and circumstances, I do not find any reason to interfere with the FIR at this initial stage. Thus, this application is
dismissed.
