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2012 DIGILAW 1686 (PAT)

Jyoti Bhushan Tarkeshwar Tiwary v. State of Bihar

2012-12-13

RAJENDRA KUMAR MISHRA

body2012
ORDER Criminal Misc. No.42469 of 2008, under Section 482 of the Code of Criminal Procedure, has been filed on behalf of the petitioners for quashing the order dated 2.8.2008 passed in Complaint Case No.1270(C) of 2008 by Smt. Arti Kumari Singh, Judicial Magistrate, First Class, Patna, summoning the accused-petitioners, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Sections 406, 420 and 120-B of the Indian Penal Code. Criminal Misc. No.17125 of 2010, under Section 482 of the Code of Criminal Procedure, has been filed on behalf of the petitioners for quashing the order dated 18.10.2009 passed in Complaint Case No.1270(C) of 2008 by Smt. Arti Kumari Singh, Judicial Magistrate, First Class, Patna, rejecting the application filed on behalf of the accused-petitioners under Section 245 of the Code of Criminal Procedure for discharge. Since both the applications have been filed against the orders impugned passed in the same complaint case, hence, both the applications have been heard together and are being disposed of by this common order. 2. In brief, the facts leading to this application are that the complainant-opposite party no.2, Dinesh Kumar, filed the Complaint Case No.1270(C) of 2008 alleging therein that he is the Proprietor of M/s. Rashmi Enterprises, New Area, Jakkanpur, Near Shiv Mandir, P.S. Jakkanpur, District-Patna, which deals with the Lubricants range of products for Automotive, Industrial and all kinds of products of Lubricants Division and the object of the firm is to carry on and forwarding of lubricating products from different manufacturers to different places. He came to know regarding the appointment of Carrying and Forwarding (C & F) agent at Patna for entire State of Bihar of M/s. Sonachi Biotech Private Limited, Mumbai through Hindustan Hindi Daily News Paper dated 23.8.2005 then he contacted on telephone and visited the office of M/s. Sonachi Biotech Private Limited at Mumbai and after discussion of several points and assurance to enter into an agreement, a letter was issued for appointing C & F for entire Bihar to M/s. Rashmi Enterprises, Patna. Thereafter, an agreement was duly signed by the accused-petitioner no.1, Jyoti Bhushan Tarkeshwar Tiwary, one of the Directors of M/s. Sonachi Biotech Private Limited, Mumbai, for M/s. Sonachi Biotech Private Limited, Mumbai, and by him for M/s. Rashmi Enterprises, on 11.11. 2005. Thereafter, an agreement was duly signed by the accused-petitioner no.1, Jyoti Bhushan Tarkeshwar Tiwary, one of the Directors of M/s. Sonachi Biotech Private Limited, Mumbai, for M/s. Sonachi Biotech Private Limited, Mumbai, and by him for M/s. Rashmi Enterprises, on 11.11. 2005. On 11.11.2005, at the time of entering into an agreement, he paid security of Rs.5,00,000/- in the form of Demand Draft, one vide D.D. No.505834 dated 5.11.2005 for Rs.4,00,000/- issued by Canara Bank and another vide D.D. No.165173 dated 5.11.2005 for Rs.1,00,000/- issued by State Bank of India in favour of accused no.1, M/s. Sonachi Biotech Private Limited, Mumbai. The operation of the business was started but from the very beginning the attitude and behaviour of the accused persons were not satisfactory with regard to payment of commission as well as other expenses as per the terms of the agreement but anyhow he accelerated the business without any mistake from his side. The accused persons without issuing any notice and taking his consent violated the terms and appointed C & F for entire Bihar and sent the Lubricants directly to P.J. Enterprises, who forwarded the products to one Puja Marketing at Bhagalpur on 21.2.2007 of Rs.35,527.50/- vide Challan No.142. When the complainant-opposite party no.2 came to know about the fraudulent intention of the accused persons, he immediately contacted them and asked about the violation of terms and conditions of the agreement but the accused persons ignored the matter and stopped the business with his firm without any rhymes and reasons. The complainant-opposite party no.2 tried again and again to reconcile the business life on E-mail but there was no fruitful result. Thereafter, the complainant-opposite party no.2 sent the legal notice through his counsel, Mr. Bishnu Kant Dubey, Advocate on 21.4.2008 for full and final settlement but the accused persons were mum. As per discussions made with the accused nos.2, 3 and 4, the officials of accused no.1, M/s. Sonachi Biotech Private Limited, Mumbai, all the accused persons unfortunately violated the agreed points and, as such, it is quite clear that the intentions of the accused are to digest the security amount, interest, commission and other convenient charges, which are as follows: – a. Interest of 12% per annum on security deposit amount of Rs.5,00,000/- from 1.12.2005 to till today. b. 3% of commission on other billing to any other parties of Bihar. b. 3% of commission on other billing to any other parties of Bihar. c. Godown Rent since April, 2006 to March, 2008 @ 2500/- per month including electricity. d. Staff and Guard salary since April, 2006 to September, 2007 @ 3000/- per month. e. Average sale of complainant in between December, 2005 to April, 2006 is Rs.3 lacs to 4 lacs approximately per month, i.e., commission made out approximately Rs.15000/- to Rs.20,000/- per month. As such, all the accused persons fraudulently and dishonestly cheated him receiving Rs.5,00,000/- on false promise to pay the interest, commission and expenses and also committed the breach of trust under conspiracy and caused wrongful loss approximately Rs.2 lacs-3 lacs. 3. After filing of the aforesaid complaint petition by the complainant-opposite party no.2, Dinesh Kumar, Proprietor of M/s. Rashmi Enterprises, New Area, Jakkanpur, Near Shiv Mandir, P.S. Jakkanpur, District-Patna, on enquiry under Section 202 of the Code of Criminal Procedure, the accused-petitioners were summoned for the offence under Sections 406, 420 and 120-B of the Indian Penal Code through the impugned order dated 2.8.2008, which is under challenge in Criminal Misc. No.42469 of 2008. Thereafter, the accused-petitioners filed an application under Section 245 of the Code of Criminal Procedure for discharge, which was rejected through the impugned order dated 18.10.2009, which is under challenge in Criminal Misc. No.17125 of 2010. 4. Learned counsel appearing on behalf of the petitioners made submission that, in fact, on 30.12.2006, the complainant-opposite party no.2 himself sent a letter to the accused-petitioner no.1, Jyoti Bhushan Tarkeshwar Tiwary, one of the Directors of M/s. Sonachi Biotech Private Limited, Mumbai, (Annexure-‘3’ to Criminal Misc. No.42469 of 2008) stating therein that he has decided to resign as a C & F of Bihar with his own will and desire and requested to arrange final settlement upto 31.12.2006 against his security and pending bills. In the account, as submitted by the complainant-opposite party no.2, Rs.2,13,240/- was due against M/s. Sonachi Biotech Private Limited, Mumbai. Thereafter, the accused-petitioner no.1, Jyoti Bhushan Tarkeshwar Tiwary, one of the Directors of M/s. Sonachi Biotech Private Limited, Mumbai, replied the complainant-opposite party no.2 through a letter (Annexure-‘5’ to Criminal Misc. No.42469 of 2008) stating and pointing out the due amount Rs.26,273/- with cheque requesting to return the form “F” and agreement. Thereafter, the accused-petitioner no.1, Jyoti Bhushan Tarkeshwar Tiwary, one of the Directors of M/s. Sonachi Biotech Private Limited, Mumbai, replied the complainant-opposite party no.2 through a letter (Annexure-‘5’ to Criminal Misc. No.42469 of 2008) stating and pointing out the due amount Rs.26,273/- with cheque requesting to return the form “F” and agreement. It is further submitted that on bare reading of the complaint petition, it would appear that the dispute relates to the accounting in business transaction, which is of civil in nature, but the learned Magistrate illegally summoned the accused-petitioners, who respectively are Directors and Vice President of M/s. Sonachi Biotech Private Limited, Mumbai, for the offence under Sections 406, 420 and 120-B of the Indian Penal Code through the impugned order dated 2.8.2008 and also illegally rejected the application filed on behalf of the accused-petitioners under Section 245 of the Code of Criminal Procedure for discharge through the impugned order dated 18.10.2009. 5. On the other hand, learned counsel appearing on behalf of the opposite party no.2 made submission that there is no illegality in the impugned orders dated 2.8.2008 and 18.10.2009. It is further submitted that after rejection of the application filed on behalf of the petitioners under Section 245 of the Code of Criminal Procedure for discharge, the trial is going on and, as such, the petitioners may raise their defence at the appropriate stage in the trial court. 6. It is further submitted that after rejection of the application filed on behalf of the petitioners under Section 245 of the Code of Criminal Procedure for discharge, the trial is going on and, as such, the petitioners may raise their defence at the appropriate stage in the trial court. 6. From perusal of the complaint petition, it appears that the allegation has been made by the opposite party no.2, Dinesh Kumar, the Proprietor of M/s. Rashmi Enterprises, New Area, Jakkanpur, Near Shiv Mandir, P.S. Jakkanpur, District-Patna, that the agreement was entered into in between his firm, namely, M/s. Rashmi Enterprises, New Area, Jakkanpur, Near Shiv Mandir, P.S. Jakkanpur, District-Patna and M/s. Sonachi Biotech Private Limited, Mumbai, of which the petitioners are Directors and Vice President respectively, regarding the appointment of C & F and letter was issued for C & F for entire Bihar to deal with the Lubricants’ products of M/s. Sonachi Biotech Private Limited, Mumbai, on depositing security money of Rs.5,00,000/- but against the agreement P.J. Enterprises, Kankarbagh, Patna, was appointed as C & F by M/s. Sonachi Biotech Private Limited, Mumbai without the consent of the firm of the opposite party no.2, namely, M/s. Rashmi Enterprises, New Area, Jakkanpur, Near Shiv Mandir, P.S. Jakkanpur, District-Patna, and despite repeated requests the dues amounting to Rs.2,13,240/- was not paid by M/s. Sonachi Biotech Private Limited, Mumbai, of which the petitioners are Directors and Vice President respectively, to the opposite party no.2. In the agreement (Annexure-‘2’ to Criminal Misc. No.42469 of 2008), as entered into between the firm of the opposite party no.2, namely, M/s. Rashmi Enterprises, New Area, Jakkanpur, Near Shiv Mandir, P.S. Jakkanpur, District-Patna and M/s. Sonachi Biotech Limited, Mumbai, of which the petitioners are Directors and Vice President respectively, there is provision that the disputes, regarding the violation of the terms and conditions of the agreement, shall be referred to the Arbitrator. Annexure-‘3’ to Criminal Misc. No.42469 of 2008 is the letter dated 30.12.2006 sent by the opposite party no.2, Dinesh Kumar, the Proprietor of M/s. Rashmi Enterprises, New Area, Jakkanpur, Near Shiv Mandir, P.S. Jakkanpur, District-Patna, addressed to the accused-petitioner no.1, Jyoti Bhushan Tarkeshwar Tiwary, one of the Directors of M/s. Sonachi Biotech Private Limited, Mumbai, showing inability to continue business and his resignation as C & F agent in Bihar detailing the dues amount of Rs,2,13,240/- 7. Section 406 of the Indian Penal Code relates to the punishment for criminal breach of trust which is defined in Section 405 of the Indian Penal Code. Section 420 of the Indian Penal Code relates to the punishment of cheating and dishonestly inducing delivery of property and cheating is defined in Section 415 of the Indian Penal Code. Sections 405 and 415 of the Indian Penal Code are read as under: – “405. Criminal breach of trust. – Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. 415. Cheating. – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission cause or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. 8. On going through the aforesaid provisions, it is clear that to constitute the offence under Section 406 of the Indian Penal Code, there should be entrustment of the property to a person and the property should be dishonestly misappropriated or converted to his own use by that person. Similarly, for the offence of cheating, there should be deception by a person either by making a false or misleading representation or fraudulently or dishonestly inducing any person to deliver any property. 9. If the allegations, as made in the complaint petition, are taken at its face value and accepted to be true in entirety, the same do not constitute the offence against the petitioners under Sections 406 and 420 of the Indian Penal Code as the ingredients required for the offence of criminal breach of trust and cheating are lacking. 9. If the allegations, as made in the complaint petition, are taken at its face value and accepted to be true in entirety, the same do not constitute the offence against the petitioners under Sections 406 and 420 of the Indian Penal Code as the ingredients required for the offence of criminal breach of trust and cheating are lacking. The contents of the complaint petition clearly indicates the dispute of accounting in business dealing which is of civil nature. As such, the impugned order dated 2.8.2008, summoning the accused-petitioners for the offences under Sections 406, 420 and 120-B of the Indian Penal Code and the impugned order dated 18.10.2009, rejecting the application filed on behalf of the petitioners under Section 245 of the Code of Criminal Procedure for discharge passed in Complaint Case No.1270(C) of 2008, appear to be an abuse of the process of the court. 10. Accordingly, the impugned orders dated 2.8.2008 and 18.10.2009 passed in Complaint Case No.1270(C) of 2008 as also the criminal proceedings, arising out of the aforesaid complaint case, with respect to the petitioners are hereby quashed and the applications are allowed.