J.R. Chopra, J.
1. Heared and perused the case diary submitted for my perusal. It is alleged against the accused-petitioner that he purchased certain goods from complainant M/s Virendra Textiles, Mahavir Market, Tripolia Bazar, Jodhpur vide Bill No. 261 for a sum of Rs. 8,688.15p. It is further alleged that the accused-petitioner himself is a shop-keepeer, who runs his business in the name and style of M/s Jyoti Textiles, Tripolia Road, Jodhpur. At the time of purchasing these goods, the accused-petitioner told the complainant that he will pay this amount in the evening. In the evening when money was demanded, it was told that he was to recieve money on that day but it has not been received and so, he will send it on the next day. It so happened that no payment was made for about 4 to 5 months and on 5-9-87, a cheque was given to the complainant drawn on the Laxmi Commercial Bank by the brother of the accused. This cheque was given to the accused fully knowing the fact that the Bank Account has been closed. When this fact was brought to the notice of the accused, he again gave one cheque on 10-9-1987 drawn on the Punjab and Sindh Bank without having money to honour the cheque in his account. Thereafter, the accused paid a sum of Rs. 1000/- on 3-11-1987, Rs. 500/- were paid on 3-12-1987 and on 22-1-1988 he further paid a sum of Rs. 500/-. However, a notice was issued by the complainant to the accused and in reply to that notice, the accused took the plea that the goods supplied to him were bad and, therefore, the payment has not been made.
2. Mr. K.L. Jasmatiya the learned Counsel appearing for the accused-petitioner has contended that in such cases of commercial transactions in order to pressurise the accused to make the payment, the civil dispute is given the colour of a Criminal dispute and the Court should take note of this fact. In support of his submission, he placed reliance on a decision of the Delhi High Court in Vijay Khanna v. Jumbo Electronics Co. Ltd. 1984 Cr. L.J. 1967, wherein it has been observed that the courts must be cautious in dealing with the allegations before the criminal court which also raise the dispute between the parties of a civil nature for which the aggrieved party must ordinarily invoke the aid of a civil process and to reasonably preclude the possiblity that a mere convenient forum of a criminal court may have been mala-fide selected by an aggrieved parson in preference to prolix and costly civil procces with a view to have an expeditious settlement of a bonafide dispute or to twist the tail of the accused for a settlement favourable to the party.
3. It was further submitted by Mr. Jasmatiya that issue of a cheque would not imply any presumption that the drawer already had money in the Bank to cover the amount shown on the cheque, for he may have either authority to overdraw or have an honest intention of paying the necessary money before presentation of the cheque for encashment. In this connection, reliance was placed on G.K Mohanty v. Pratap Kishore 1987 Cr.LJ 1446. In Keshavji v. Emperor AIR 1930 Bombay-179, it has been held that the giving of a cheque on a bank as payment for goods, or in payment of a debt does not amount to presumption that the person giving the cheque has money to the amount in the Bank at the time but does amount to a presumption (i) that he has authority to draw on the bank for that amount; and (2) that the cheque is a good and valid order for the payment of its amount and that the cheque will be paid i.e. that the existing state of facts is such that in the ordinary course the cheque will be met. It was further observed as
What the prosecution has to do in a case of cheating by means of cheque is to establish facts which point prima facie to the conclusion that the failure to meet the cheque was not accidental but was a consequence expected and therefore, intended by the accused.
4. It was argued by Mr. Jasmatiya that simply because a cheque has been given and it was found that Bank A/c has been closed and on the second occasion, when the cheque was issued, it has been dishonoured for want of sufficient' funds, it does not mean that the accused had nurtured any bad intention. In this respect, he has placed reliance on a decision of the Bombay High Court in Daungarshi v. M/s Devi Prasad Om Prakash Bajoria 1985 Cr. LJ 1943, where in it has been held that it is well settled principle of law that to hold a person guilty of the offence of cheating it has to be shown that his intention was dishonest at the time of making promise. Such a dishonest intention cannot be inferred from the rare facts that he could not subsequently fulfil the promise. Mr. Jasmatiya has further drawn my attention to a Single Bench decision of this Court in Swarnjeet Jain v. State of Rajasthan (1981 Cr LR (Raj) 671). It was a case of contract of agency where the goods were supplied to the agents for sale and payment was not made, but the present case is not a case of agency. Here the accused himself has gone to purchase the goods to the shop of the complainant. He selected the goods and brought with him and gave assurance to the complainant to make the payment in the evening. How ever, in the evening, when some body from the shop of the complainant went to the shop of the accused, he was told that the money which was expected to be recieved has not been recieved and, therefore, he will make payment on the next date but that next day never came for about four and half months. Thereafter, a cheque was given by the petitioner's brother to be drawn on a Bank where he has already closed his A/c. This fact clearly shows that the intention of the accused from the very beginning was to cheat the complainant. After 10 days of issuing the first cheque, another cheque, drawn on the Punjab and Sindh Bank, was, issued and that too was dishonoured for want of sufficient funds. Simply becuase the accused has paid Rs. 2000/-to the complainant after the cheques have been dishonoured, that he may hot be implicated in any criminal case, it does not mean that he did not nurture any intention to cheat the accused from the very beginning. In this case, the accused had personally selected the goods and brought them to his shop and, therefore, there is no question that the goods were bad. Even this plea was taken by him after the cheques were dishonoured and a notice was issued to him by the complainant i.e. after one year of the purchase of the goods and, therefore, this plea on his part also smacks of malafide from the very beginning. If the cloth was bad or defective how could be issue cheques in favour of the complainant without any demur. That clearly shows that his intention from the very beginning was to cheat. The making of payment of Rs. 2000/- at a later stage does not absolve the accused of his initial conduct which was actuated by cheating. At one stage, the learned Counsel appearing for the accused petitioner took time from the Court to make payment to the complainant but later he has submitted that his client is ready to pay the amount in instalments but that has also not been done so far. According to me, this is a case in which the intention of the accused-petitioner prima facie appears to be to cheat the complainant from the very beginning. It is true that the complainant has actually treated it to be a commercial transaction and it was becuase of that, that he accepted certain payments even after he was defrauded on a number of times and he further gave notice to the accused for recovery of the outstanding amount but what he thought is not material in this case. In every case, when a man is cheated, he feels that the transaction is genuine and he acts accordingly but it is later that he realises that he has been cheated and so in such cases what is material is to find out what was the intention of the accused from the very beginning and that according to met it prima facie appears to be to cheat the complainant and when that is so, it cannot be treated as a pure civil transaction. It will not be out of place to mention here that intention is usually not expressed in words. It has to be gathered from the facts and circumstances of a particular case.
5. In the peculiar facts and circumstances of this case, I am firmly of the view that the intention of the accused-petitioner from the very beginning was to cheat the complainant and, therefore, I am not inclined to grant anticipatory bail to the accused-petitioner Gandhi Ramnani.
6. This bail application is, therefore, rejected.