P.C.

Attacking the order of issuance of process by the learned Metropolitan Magistrate, 7th Court, Dadar in Case No. 235/S/96 the present petition is filed on two counts. Firstly that the dispute is entirely of civil nature and secondly that the learned Magistrate has issued the process without applying his mind.

2.If it was a dispute of civil nature and there was an abuse of process of law as decided in AIR 1979 SUPREME COURT 850 in the case of Trilok Singh and others versus Satya Deo Tripathi, relied upon by the petitioners, obviously the petition would have been admitted.

3.So far as application of mind is concerned, when one turns to paragraph 6, page 65 there is a reference to the Agreement between the parties whereby upto limits of 8.33 lakhs goods were to be given by the agents to another party and when the agreement was about to come to an end transaction to the tune of Rs.21 lakhs has been entered into between the accused on one hand and the other party being the party of the second part.

4.Thereafter in view of the relationship between the accused and the person connected with the said party of the second part, allegation is made that because of their close relationship in clear violation of agreement and in breach of the entrustment of the terms with the accused, the said transaction having taken place amounts to offence.

5.From paragraph 6, page 66 the fact of filing of the suit is referred to and that has been done in the month of February, 1996. The complaint is filed on 26.4.1994. Merely because the suit is filed, if there be an offence arising out of the very fact which gives rise to an occasion for filing civil suit, the complaint cannot be thrown out of any essence that it is a dispute of civil nature.

6.This cannot be said to be an abuse of the process of Court as sought to be made out with reference to the said Supreme Court judgment in the circumstances narrated above.

7.So far as the requirement of the learned Magistrate to apply his mind is concerned, looking to the aforesaid facts his order can be said to be after application of mind. The Gujarat High Court decision reported in 1997 (2) Gujarat Law Reporter 1655 in the case of B. Ramesh & Ors. versus State of Gujarat will not help the petitioners.

8.In short, after going through the complaint in my opinion prima facie the ingredients of the offence are made out. Hence, there is no question of entertaining the petition. It is clarified that the observations made are only for the purpose of dealing with this application and they shall not bind to the learned Magistrate who will decide the matter on its own merits and in accordance with law.