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2008 DIGILAW 1080 (PAT)

Ramesh Kumar Dua v. State Of Bihar

2008-08-05

SHEEMA ALI KHAN

body2008
Judgment 1. In this application, the petitioner has challenged the order, dated 22.9.2007 passed by the Judicial Magistrate, Patna by which cognizance has been taken against the petitioners tor the offences under Sections 406 and 420 of the Penal Code. 2. The petitioners 1 to 4 are the Managing Director, Director, Marketing Executive and the Accounts Executive of Relaxo Footwear Limited whereas petitioner no. 5 is the General Manager (Sales) of the said company. 3. Learned counsel appearing on behalf of the petitioners submits that (i) the contents of the complaint petition constitute a civil offence, (ii) it is beyond the jurisdiction of the court at Patna, (iii) that the solemn affirmation of the complainant does not reveal the facts which would involve the participation of petitioners 1 to 4. It has also been contended that the complainant is not authorized to file the complaint as he is not a signatory to the agreement. 4. The facts stated in the complaint petition are that the complainant has been running a business of footwear in the name and style of M/s Maa Tara Enterprises situated at Kankarbagh, Patna. In October, 2005. the complainant requested the petitioners to provide a distributorship of footwear and to send the footwear so that the complainant could run his business in a better manner. For this purpose it is said that Rs. 50,000/- was deposited by the complainant as security and it was further agreed that the complainant should pay Rs. 10 lacs through demand draft and when the amount would exceed Rs. 9 lacs, the petitioners were to supply the footwear to the complainant. The allegation is that the complainant deposited Rs. 9,98,500/- through different demand drafts in favour of the petitioners which is described in the schedule and the legal notice but even after the deposit of the said amount the footwear was not supplied and thereby the petitioners had criminal intention of cheating the complainant and have committed breach of trust. A legal notice was issued on 18.7.2007 which is at Annexure1 to the complaint petition. It would also be relevant to refer to the legal notice which contains the dates, the amount and the draft numbers by which the complainant had paid the money to the petitioners. 5. A legal notice was issued on 18.7.2007 which is at Annexure1 to the complaint petition. It would also be relevant to refer to the legal notice which contains the dates, the amount and the draft numbers by which the complainant had paid the money to the petitioners. 5. Learned counsel appearing on behalf of the petitioners submits that the entire allegations are false and the only money that has been deposited by the complainant is Rs. 50,000/- for which the petitioners are paying interest @ 8% till date. It is further pointed out that the demand drafts 1-4 have been issued by M/s Anwar House whereas demand drafts, dated 28.10.2005 and 24.11.2005 and of subsequent dates upto 2.2.2006 were issued by M/s Rajdeep Footwear whereas demand drafts, dated 12.4.2006 and 15.4.2006 were issued by M/s Rajdhani and M/s Balaji Sales. It is submitted that except for the demand draft no. 205739, dated 4.2.2006 for the amount of Rs. 15,000/-, demand drafts no. 205748 both dated 10.2.2006 for Rs. 30,000/- each which have been issued by M/s Maa Tara Enterprises, the rest are not by the said company and as such the statements are palpably false and fabricated. 6. It is submitted on behalf of the petitioners that the complainant ought to have filed photostat copies of the demand drafts to prima facie show that in fact M/s Maa Tara Enterprises had made payments to Relaxo Footwear. In view of the fact that the complainant is basing his claim on documentary evidence rather than on oral evidence to make out an offence under Sections 420 and 406 of the Penal Code. 7. The second question that has been raised by the petitioners is that when the complainant and Pravin Kumar Singh were examined on solemn affirmation, they have not supported the facts stated in the complaint to the extent that they have not disclosed where and how the agreement was reached between the parties. They have only stated that after payment of the alleged amount, they met petitioner no. 5 who refused to return the sum of Rs. 9 lacs and odd or supply footwear for the said amount of money. The petitioners, therefore, have rightly pointed out that the entire allegations are vague in absence of specific statements regarding the details of how the parties contacted each other and the agreement was reached between them. 8. 5 who refused to return the sum of Rs. 9 lacs and odd or supply footwear for the said amount of money. The petitioners, therefore, have rightly pointed out that the entire allegations are vague in absence of specific statements regarding the details of how the parties contacted each other and the agreement was reached between them. 8. Learned counsel for the petitioners while relying on the agreement (Annexure-3) has submitted that the same was made by Mr. Nishant Kumar, the proprietor and not by Satyendra Kumar Singh. 9. Learned counsel for Opp. Party No. 2, on the other hand, submits that Annexure-3 is a forged document. The fact that the agreement is forged document or genuine has to be decided by leading evidence. However, this may not be the clinching issues to decide whether a case of cheating is made out or not. 10. Mr. Rajiv Verma further relied on Annexure-2 which is a copy of the plaint filed being Civil Suit No. 150/2006 in the court of the Addl. District Judge, Delhi. The defendant in the suit is M/s Balaji Sales through its proprietor Satyendra Singh. The suit has been filed for recovery of Rs. 10,07,203.60 paise with costs and interest pendente lite and future interest @ 21%. The said amount is sought to be recovered as it is alleged that the defendant had not made payment with respect to the supply of the goods made by the plaintiff Relaxo Footwear Limited to the defendant. It is stated that the opposite-defendant party appeared in the suit and the issues have already been framed. It is submitted that notice in the suit was issued on 1.7.2006 and the Opposite Party appeared on 25.9.2006 whereas the present complaint petition was filed on 10.8.2007 to put pressure on the petitioners to compromise the suit. 11. Counsel for the Opp. Party No. 2, on the other hand, has submitted that the suit relates to recovery to be made with respect to business transaction with M/s Balaji Sales and the present complaint is with respect to a different company i.e. M/s. Maa Tara Enterprises. Learned counsel has stated that this application has become inructuous in view of the fact that the evidence is being taken before charge. 12. Learned counsel has stated that this application has become inructuous in view of the fact that the evidence is being taken before charge. 12. The question, therefore, before this court is whether on the facts as mentioned in the complaint case, the offences under Sections 406 and 420 of the Penal Code can be said to have been made out against the petitioners. 13. The main ingredients of Section 406 of the Penal Code can be divided in two parts. The first part is that the accused must have been entrusted with property or dominion over property and should have misappropriated or converted to his own use and the second being that such misappropriation must be with dishonest intention. 14. In dealing with cases of criminal breach of trust, the difference between civil and criminal liabilities have to be borne in mind by the court. Every offence in a criminal breach of trust involves a civil claim in respect of which the complainant may seek redressal in a civil suit but every breach of trust in the absence of the requisite mens rea is not criminal. 15. In the present case there was a purported agreement for supply of footwear on payment of certain amount of money. At the time when the payment was made and accepted, there is no element of criminal intention to misappropriate as both the parties have claims and counter claims. Where such claims and counter claims are made by the parties and the amount given or received is disputed for more than one or more reasons, it cannot be held to be a case making out an offence of criminal misappropriation and as such I hereby quash the order taking cognizance as far as Section 406 of the Penal Code. 16. Coming now to the order taking cognizance under Section 420 of the Penal Code, this court feels constrained in passing any order at this stage. The fact whether the petitioners have cheated the Opposite Party No. 2 would essentially depend upon the documentary evidence i.e. mentioned in the legal notice which is part of the complaint petition. 17. Considering the stage of the case it would be open to the petitioners to demonstrate before the court that the demand drafts were not paid by M/s Maa Tara Enterprises. 17. Considering the stage of the case it would be open to the petitioners to demonstrate before the court that the demand drafts were not paid by M/s Maa Tara Enterprises. I have no hesitation in directing that either of the parties can produce the documents as these documents (demand drafts) are part of the complaint petition and as such it would not be asking the parties to produce evidence before the trial, specially in view of the fact that where there is an allegation based on documents, it would be proper that the parties should produce the relevant documents at the stage of framing of charge. The petitioners may also raise any relevant question before the court below at the time of framing of the charge. After considering relevant matters it would be open to the Court to decide whether prima facie ingredients of Section 420 I.P.C. have been made out. 18. This application is allowed to the extent indicated above.