@JUDGMENTTAG-ORDER
Abhijit Sinha, J.@mdashThis application at the instance of two petitioners herein, is for quashing of the entire criminal proceeding initiated against them being Complaint Case No. 596 of 2003 pending in the Court of Sri M. Singh, learned Judicial Magistrate, 1st Class, Madhepura including the order dated 20.2.2004 passed therein whereby cognizance of the offences u/s 420 of the Indian Penal Code has been taken against them and two others. The facts of the case may be noticed with relative brevity. Opposite party No. 2 herein, filed the aforesaid complaint alleging inter alia the commission of offences under Sections 427, 384, 420 / 34 of the Indian Penal Code at the hands of the four persons impleaded as accused including the two petitioners herein. The complainant asserted that he ran a business at Bihariganj within the District of Madhepura in the name and style of M/s Anand Trading Company and was a dealer of M/s Hindustan Lever Limited (Hereinafter referred to as ''the Company'') till the year 1999. It is alleged that the Company at the time of agreement with the complainant obtained his signature over certain plain and printed papers but he was not made aware of the contents of the agreement. It is further alleged that the Company failed to supply Form IX C for exemption of the sales tax to the complainant for the period 1997-98 and 1998-99, even after repeated demands were made by the complainant. Notwithstanding the fact that the Company was under an obligation to provide to the complainant such forms as stipulated in sub-rule (2) of Rule 12 of Bihar Sales Tax Rules, 1983 (Hereinafter referred to as ''the Rules'') and as such the accused persons who happened to be the officers of the Company had cheated the complainant. The further case of the complainant is that a proceeding u/s 17 of the Bihar Finance Act, 1981 (Hereinafter referred to as ''the Act'') was initiated against the complainant for financial year 1997-98 and 1998-99 whereby the complainant was directed to produce his books of account but as the complainant had not been supplied with Form IX C by the accused persons the complainant could not present his case and as a result thereof an ex parte order of assessment was passed against him directing him to pay Rs. 3,03,000/- for the year 1997-98 as sales tax including penalty and Rs. 2,22,690/- for the year 1998-99 as sales tax including penalty. It has been asserted that during the two aforesaid assessment proceedings the complainant had approached the accused persons but the complainant was not provided with Form IX C and as a result thereof he had to incur financial losses and the accused persons were admittedly liable for the loss incurred by the complainant by cheating the complainant.
2. It has been submitted on behalf of the petitioners that the complainant was examined on S.A. alongwith two other witnesses at the inquiry u/s 202 Cr.P.C. whereafter cognizance was taken by the learned Magistrate mechanically and without applying his judicial mind. It was also submitted that the petitioner No. 1, Anil Ritolia @ A.K. Ritolia is Ex-Carrying and Forwarding Agent (C&FA) of the Company and the petitioner No. 2, Suresh Sultania @ Suresh Kumar Sultania was also Ex-Carrying and Forwarding Agent (C&FA) of the Company and they in no way had anything to do with the transmission of Form IX C to the complainant. In this connection, it was sought to be submitted that the complainant at no point of time had approached the Company or Officers of the Company stating that he had not received Form IX C. It was sought to be submitted that the two petitioners are not the employees of the Company and have in no way any concern with the issuing of Form IX C to the complainant and the Company for the first time came to know about the grievance of the complainant when it received a pleader''s notice from the complainant and in response thereto the Company vide letter dated 14.7.2003 gave a detailed reply high-lighting all the facts. In this connection, it has been submitted that in the said letter issued by the Company it was mentioned that Form IX C for the year 1998-99 bearing No. 0005704 dated 9.11.1999 for Rs. 13,15,042.16/- was duly issued and delivered to the complainant through their erstwhile depot at Teghra and so far as Form IX C for the year 1997-98 is concerned, since considerable time had elapsed, details of issuance of Form IX C for that period was not available readily with the Company. The petitioners also sought to submit that at no point of time the Company had refused to issue Form IX C to the complainant. It was also asserted that since the complainant had not appeared before the assessing authority, ex parte order was passed and for the same the petitioners could not be held liable.
3. Continuing with the submissions the learned counsel contended that the Company had sent letter dated 5.5.2004 which had been duly received by the complainant wherein the complainant was requested to give indemnity bond which is a prerequisite for issuance of duplicate IX C Form as per sub-rule 13(a) of Rule 14 of the Rules and a sample of indemnity bond was also annexed with the said letter but curiously enough the complainant had not given any indemnity bond to enable the Company to issue a duplicate Form IX C. It was further submitted that as a matter of fact one of the employees of the Company had visited the complainant at Bihariganj to handover the duplicate Form IX C but due to the non-furnishing of indemnity bond by the complainant the same could not be given to him. The further contention on behalf of the petitioners is that against the said ex parte order of assessment the complainant had the remedy of preferring an appeal u/s 45 of the Bihar Finance Act and the complainant instead of availing the same remedy provided under the Statute and instead of obtaining Form IX C by executing indemnity bond filed the instant case which is neither maintainable nor sustainable in law and was a clear intention of harassing them. It was also submitted that the entire matter was in the nature of a civil dispute and criminal proceeding cannot be sustained in law.
4. Opposing the prayer of the learned counsel for the petitioners, the learned counsel for the complainant-Opposite Party No. 2 contended that although four persons had been impleaded as accused in this case and cognizance had been taken against them by a common order, it was only accused Nos. 3 and 4 who had preferred the instant application. In this context it was submitted that the case of these two petitioners could not be considered in isolation to the exclusion of the other two accused who have not sought to challenge the order of cognizance. It was also sought to be submitted that the petitioners were only speaking half truth to wriggle out of the criminal liability. It was also sought to be submitted that had the petitioners really sent Form IX C then there was no occasion for their representative to have come at Bihariganj to supply them with duplicate IX C Form. Even otherwise whereas the Company provided a number of Form IX C for the year 1998-99 it could not give details of the year 1997-98 and this only goes to show that the Form IX C had never been sent by the Company and for the default of the Company the complainant had to suffer the liability of being assessed at a higher rate and pay penalty for non-submission of correct returns within stipulated time. The learned counsel for the Opposite Party No. 2 also sought to submit that it was apparent that it was because of the assurances of the accused to provide Form IX C that adjournments had been sought by the complainant before the assessing authorities and it was because of the inducement of the accused that the complainant fell in their trap and this by itself was sufficient to establish an offence u/s 420 I.P.C. In this connection reference was made to the decision in the case of M.K. Agrawal vs. The State of Bihar reported in 2002 (1) PCCR 153 wherein it was held that "if any party to the contractual agreement fails to perform its part of contract motivated by any criminal intent the offence u/s 420 of the I.P.C, shall be attracted whatever may be the stage at which the offence was committed".
5. It is the petitioners'' case that one of their representatives had gone to Bihariganj to supply Form IX C but as the indemnity bond had not been furnished by the complainant the said form could not be handed over to the complainant. Whether Form IX C was supplied to the complainant by the petitioners'' Company or its agents is a matter of conjecture which can only be sorted out in course of the trial. If the Form had really been handed over to the petitioners there was no occasion for the representatives to have travelled all the way to Bihariganj to supply the complainant with Form IXC.
6. The Supreme Court in the case of
7. Again in the case of
8. Admittedly, the petitioners were the Carrying and Forwarding Agents of the Company and in that capacity they perhaps were instrumental in forwarding the articles to the complainant. They cannot escape from the liability of undergoing criminal proceeding.
9. So far as the petitioners'' contention on the dispute being a civil one is concerned, I am unable to agree with the assertions since from the facts made out a definite criminal liability is made out.
10. Be that as it may, all these points raised by the learned counsel for the petitioners are fit to be considered at the time of full-fledged trial and not at this stage where in a matter u/s 482 Cr.P.C. the court is not required to consider and travel into minute details at the very threshold stage. I do not find any merit in this application which is accordingly dismissed.
