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2008 DIGILAW 58 (PAT)

Om Prakash Pathak v. State Of Bihar

2008-01-10

REKHA KUMARI

body2008
Judgment 1. This is an application u/s 482 Cr.P.C. for quashing the order dated 27.2.2006 passed by the Judicial Magistrate, Bettiah in Complaint Case No. 2755C/2005 whereby he has directed to issue summons against the petitioner for facing trial for the offences u/ss. 420, 403, 467, 468 of the Indian Penal Code. 2. The case of the complainant (O.P. No. 2) is that he is a shopkeeper. The petitioner aproached him and introduced himself as a Sales Agent of the Southern India Products and stated that his company manufactures, sells Mosquito coils and persuaded him to become stockist. After knowing terms and conditions he became ready to become stockist. The complainant then on the instigation of the petitioner prepared a Bank draft of Rs. 59,835/- + demand draft commission Rs. 165/- = Rs. 60,000/- in favour of the Southern India Products for receipt of goods. The petitioner then took the complainant to co-accused Ravi Shankar Chcudhary, the Proprietor of M/s Baidyanath Sales, Deoghar, where on 18.2.2005 co-accused received the draft and prepared an agreement. The agreement was signed among others by the petitioner also. The petitioner and the co-accused assured the complainant that the goods would reach in his shop but the goods did not reach him. He contacted all the accused persons including the petitioner but the goods did not reach. Then, he went to Deoghar where on 13.5.2005 he met co-accused Ravi Shankar Choudhary and the Area Manager and told them to refund the money alongwith the interest. The Area Manager assured to return the money but the money was not returned. Then the petitioner sent legal notice to Ravi Shankar Choudhary and the company replied that the goods had already been dispatched in April, 2005. The complainant then again sent notice and in reply Ravi Shankar Choudhary denied to execute any agreement. 3. Learned counsel for the petitioner submitted that as regards the petitioner, no offence is made out against him. If the goods have not been received or money has not been returned, co-accused Ravi Shankar Choudhary is responsible for it and not the petitioner. 4. Learned counsel for O.P. No. 2 defended the order. 5. At the very outset it may be mentioned that in order to attract the offence punishable u/s 420 I.P.C., there must be dishonest intention from the very beginning. 4. Learned counsel for O.P. No. 2 defended the order. 5. At the very outset it may be mentioned that in order to attract the offence punishable u/s 420 I.P.C., there must be dishonest intention from the very beginning. In this case though the allegation is that the petitioner induced O.P. No. 2 to become stockist and at his instance O.P. No. 2 prepared Bank draft of Rs. 60,000/- for goods to be supplied to him, the complaint petition itself shows that the Bank draft was received by the company and it is not denied that O.P. No. 2 had been made stockist. It is also recited in the complaint petition that co-accused no. 1, the company, had sent reply that it had sent goods to M/s Baidyanath Sales. Therefore, it cannot be said that the petitioner had any dishonest intention when he approached O.P. No. 2 and became stockist. So, no offence u/s 420 I.P.C. is made out against the petitioner, 6. As regards the offence of civil breach of trust, the demand draft was in the name of the accused company and was handed over to co-accused Ravi Shankar Choudhary, So, the petitioner cannot be said to have been made entrusted with the demand draft and so no offence u/s 403 I.P.C is made out against him. 7. Then so far the other offences mentioned above, there is no allegation or materials to show that the petitioner made any false document as provided u/s 463 read with Section 464 I.P.C. Therefore, no offences u/ss. 467, 468 I.P.C. is also made out against the petitioner. 8. I thus agree with the learned counsel for the petitioner that no offence is made out against the petitioner in this case and it would be an abuse of the process of the Court to proceed against him. 9. Accordingly, the impugned order, so far the petitioner is concerned, is quashed and the application is allowed.