M.L Jain, J.:— S.C Gudimani filed a complaint against the petitioner Lt. Col. K.C Sud (Retd.), his brother Rattan Sud, Mrs. Vimla Sud, wife of Rattan Sud, their parents Kundan Lal Sud and Mrs. Kundan Lal Sud and Amit Roy under Sections 420/120B/421/422-425/34 I.P.C alleging that the complainant is the proprietor of Gudimani Enterprises located at Okhla and manufactures Goodman's tablets and liquid Ghloroscope for the purpose of providing safe and healty drinking water. The petitioner K.C Sud resides opposite the house of the complainant and was very friendly with him. In December, 1977, Lt. Col. Sud approached him for getting the distributorship of Goodmans products for Eastern India in the name of his brother Rattan Sud who is a retired major of the Indian Army and a disabled officer. Col. Sud undertook and assured that he will be the security and guarantee of his brother if he does any wrong or if he in any manner misappropriates the amount of the complainant. On January 25, 1978 Lt. Col. Sud brought Rattan Sud along with his parents and made a personal appeal for grant of distributorship. Rattan Sud introduced himself as a partner of Roy Sud & Co. Ltd. Col. Sud and his parents also assured the complainant that Rattan Sud was the partner of Roy Sud & Co. Rattan Sud made an application on January 26, 1978 for the purpose. On January 27, 1978 the complainant issued a formal appointment letter in the name of M/s. Roy Sud & Co. for distributorship, at his address Babupara, Jalpaiguri (West Bengal). The complainant handed it over personally to Rattan Sud. Rattan Sud took the appointment letter and promised to send the same after getting the signatures of Amit Roy. But the appointment letter was instead sent back on February 7, 1978 signed by Smt. Vimla Sud, agreeing to and accepting the terms and conditions as a partner of Roy Sud & Co. she wrote that Eastern Region shall include Bihar, Orissa, West Bengal, Assam, Meghalaya and Arunachal. She also requested for distributorship of M/s. Rural Water System Pvt. Ltd. a sister concern of the Gudimani Enterprises on similar terms for the same areas. On February 13, 1978 the office of the complainant sent a letter to Rattan Sud asking him how Vimla Sud had signed as a partner for Roy Sud & Co. This fact was also brought to the notice of Lt. Col. K.C Sud by the complainant. Lt. Col. Sud assured that he will check up with Rattan Sud. He came to the house of the complainant and told him in a very apologetic manner that his brother Rattan Sud had falsely represented himself as partner of Roy Sud & Co. though he could not be a partner of the said firm being an agent of Indane Gas of the Indian Oil Limited for Jalpaiguri. Lt. Col. Sud, however, assured the complainant that he will be responsible for every acts of Rattan Sud and Mrs. Vimla Sud. They further assured that by the end of the month, their office will be functioning in Calcutta.
2. Gudimani Enterprises (hereupon despatched goods worth Rs. 3,500/- and Rs. 10,110/- on 10.3.1978 worth Rs. 67,391/- on 3.4.1978 and worth Rs. 52,793/- and Rs. 66,200/- on 15.5.1978
3. On 21.6.1978 Rattan Sud sent a letter on the letter head of Roy Sud & Co. and signed the same as partner for Roy & Sud. He again sent a letter on 2.10.1978 with a copy to Lt. Col. Sud. On 7.10.1978 Amit Roy sent a letter with a copy to Lt. Col. Sud as a partner of Roy & Sud Co. Between 17.10.1978 and 22.11.1978 Amit Roy and Rattan Sud have been coming to Delhi and taking goods from the complainant's factory. Thus, till 30.11.1978 goods worth Rs. 5,28,198/- were taken by the accused. The accused were entitled to a discount of Rs. 1,22,812.50 paise if they submitted the essential sales-tax number in Form ‘C’. The total amount which was payable to the complainant's company was Rs. 4,54, 132.50 paise. But the accused paid only Rs. 1,35,000/- Amit Roy had issued cheques, one on 16.11.1978 for Rs. 39,000/- and the other on 22.11.1978 for Rs. 1,05,000/- but the cheques were dishonoured. If the accused had not given these cheques and had not assured that the cheques were genuine, the complainant would not have supplied the goods. These goods were received by Amit Roy through his representative Shri Dutt at Delhi. Thus the accused have cheated the complainant by playing fraud on the complainant by making him believe that the cheques were good for payment and by taking goods against them. Lt. Col. K. C. Sud has all this time been assuring the complainant that his brother and his brother's wife and Amit Roy would be making payment and the complainant should not take any action against them as their business reputation was involved. Since K. C. Sud himself was in league with them from the beginning, he was also a party to the cheating.
4. The learned Magistrate examined the complainant and three more witnesses, M.L Bansal, B.P Anand and K.K Nambiar, and issued process against the accused Nos. 1 to 4, namely Lt. Col. K.C Sud, Rattan Sud, Smt. Vimla Sud and Amit Roy under section 420/34 IPC. He discharged the parents of Suds. It is against this order that Col. K.C Sud has filed the present petition under section 397 Cr. P.C for quashing of the process.
5. A preliminary objection was raised on the basis of V.C Shukla v. State AIR 1980 S.C 862 that the impugned order was an interlocutory order and consequently, no revision lies. The learned counsel for the petitioner Shri Datar submitted and correctly that V.C Shukla (supra) has no application because that was a judgment made in the context of the special provisions of the Special. Courts Act. The impugned order even if it be not a final one is not an interlocutory order within the ratio of Madhu Limaye v. State Of Maharashtra. (1977) 4 SCC 551 : AIR 1978 S.C 47 because if the plea of the accused is accepted, the proceedings against him will conclude. Moreover, even if the petition has been entitled as one under section 397 Cr. P.C there is nothing to prevent the court to treat as one under section 482 Cr. P.C and to quash the order if it comes to the conclusion that there has been an abuse of the process of the court or otherwise it is expedient to interfere in order to meet the ends of justice. The label put by the party does-not matter. A large number of authorities were cited and read from cover to cover but without any useful purpose. The position that now stands well settled by the Supreme Court is that an order issuing process is an order which can be revised both under section 397 and 482 Cr. P.C I therefore, reject this preliminary objection of the respondent.
6. In this case, one more preliminary objection was raised earlier whether Mr. D.C Mathur, who was a Public Prosecutor could appear on behalf of the accused petitioner or not. I had taken the view that he could not. A special leave petition was filed against this order. But meanwhile, a Division Bench of this Court in Mohd. Sabir v. The State Crl. A. 328 of 1977, disagreed with my views. I bowed down to the superior wisdom and experience of the Division Bench. The special Leave petition was later on withdrawn by the petitioner. Mr. Trikha contends that the whole case including the present petition was before the Supreme Court, even the merits were questioned. Since the Special Leave petition was not pressed the present petition shall also be deemed to have been concluded. I think this argument is without any merit, calls for no discussion and is hereby rejected.
7. But the main question is whether on the facts stated in the complaint and in the statement of the witnesses any case of common intention of cheating on the part of Lt. Col. K.C Sud prima facie exists or nqt. The complainant says that he gave the distributorship to Roy Sud & Co. of which Mrs. Vimla Sud and Amit Roy were partners, upon the assurances given by Lt. Col. Sud. It is further in evidence that the whole thing went on smoothly until the cheques were dishonoured and payments to the tune of Rs. 3 lakhs and odd reminded to be paid. Lt. Col. Sud no doubt was apprised of all the goings on and it will be a matter of evidence how deep was his involvement. Actual cheating took place when the goods were supplied against cheques which were subsequently dishonoured. Whether Lt. Col. Sud had any hand or connivance or joint or vicarious liability in this affair by commission or omission will be a matter to be decided by evidence on either side. I do not consider it a fit case in which this court should interfere at this stage with the discretion exercised by the court below. There appears no illegality, irregularity or impropriety in the impugned order Nor do I consider it a case of abuse of the process of court. The revision is, therefore, dismissed.
8. The respondent made an application that contempt proceedings should be instituted against Lt. Col. Sud because he is a retired army man and has been describing himself as if he is a serving Lt. Col. I do not think that there was any criminal or objectionable intention on his part in omitting to mention “retired” against his name at certain places in his application and other documents. He is certainly a retired Lt. Col. and there is no question of the court being deceived in any manner. Even the complainant himself has at times omitted to mention or use the word ‘Retd.’. That application is frivolous and is hereby dismissed.
9. Application dismissed.