Ajay Mehra and Another vs Durgesh Babu and Others

B.K. Rathi, J.—This is a petition u/s 482, Code of Criminal Procedure to quash the proceedings of Complaint Case No. 1920 of 1999 Durgesh v. Ajay Mehra and Anr. u/s 406, I.P.C., Police Station Bilsi, Badaun pending in the Court of A.C.J.M., Badaun.

I have heard Sri Vineet Saran, learned Counsel for the Petitioners and Sri Y.S. Saxena, learned Counsel for the Respondent No. 1.

The brief facts of the complaint are that the Petitioners are the employees of I.B.P. Company Limited. Petitioner No. 1 is the Senior Manager, Agra Division and Petitioner No. 2 is Assistant Manager (Sales), Aligarh. It is alleged in the complaint by the Respondent No. 1 that the Petitioners assured him to appoint a dealer of mobile oil of I.B.P. Company. That the Petitioners approached the complainant and asked him to be ready with a bank draft of Rs. 5 lacs. That accordingly on 17.2.1995 in the afternoon the Respondent No. 1 handed over two bank drafts of Punjab National Bank, Bilsi each for Rs. 2.50 lacs bearing Nos. 1-95-802830 and 5-95-802831 dated 15.2.1995. That inspite of the said drafts the Respondent No. 1 was not appointed as dealer. That, therefore, the Respondent No. 1 on 16.2.1998 gave a registered notice to I.B.P. Company. Inspite of the same, the Respondent No. 1 was neither appointed a dealer nor his amount was returned. Thereafter the Respondent No. 1 filed a complaint against the Petitioners for offences under Sections 420 and 406, I.P.C. The learned Magistrate after recording the evidence u/s 200 and 202, Code of Criminal Procedure has summoned the Petitioners.

The contention of the Petitioners are manifold. It is contended that the bank drafts mentioned in the complaint were given in the name of I.B.P. Company by Satish Chandra Agarwal, who was the dealer of I.B.P. Company for purchase of mobile oil and other articles which were supplied to him. That no draft was given by the complainant. That it is not alleged that the drafts were given in the name of Petitioners and, therefore, there is no question of misappropriation of amount by the Petitioners. That the Petitioners moved an application for discharge before the learned Magistrate, which has been registered.

It is further alleged that the allegation of the complainant that drafts were given on 17.2.1995 in the afternoon is false, as the supplies against the said drafts were made in the morning on 17.2.1995 itself. That there is no question of the submitting drafts without any application of dealership and without following the procedure for grant of dealership. That the dealership is granted by the Ministry of Petroleum and the complaint is highly belated.

Learned Counsel for the Petitioners has filed the notice and reply of the notice given by I.B.P. Company to Satish Chandra Agarwal, which is Annexure-RA-1 and the reply of Satish Chandra Agarwal is Annexure-RA-2. In this reply, Satish Chandra Agarwal has mentioned that the drafts in dispute were given by him for supply of diesel and mobile oil which have been supplied to him. The Petitioners have also filed the account books and other registers maintained by I.B.P. Company to show that the drafts in dispute were given by Satish Chandra Agarwal and has been credited in his account. On the basis of this evidence it is contended that the allegations of the complainant that drafts were given by him is false. It is also contended that the Petitioners has nothing to do with the grant of dealership, which is granted by a Committee. That no form was filled for grant of dealership nor any application was given. That the complaint was also lodged after long delay. It is, therefore, shown that the allegations are totally false and cannot be believed.

I have considered the arguments and am of the view that at present there is no ground to quash the complaint. No reason has been alleged as to why false complaint has been filed by Respondent No. 1 against the Petitioners. It has not been mentioned as to how the complainant came to know the numbers and amounts of the drafts and the name of the bank from which they were purchased, if they were not purchased by the complainant. The complainant allege that he purchased the drafts and it is a question of fact as to whether these drafts were purchased by the complainant or by Satish Chandra Agarwal. Reply of the notice given by Satish Chandra Agarwal has been filed but no affidavit of Satish Chandra Agarwal has been filed. The question of fact can be decided after the evidence and cannot be decided in these proceedings.

In this connection. I may also refer the case of Janata Dal Vs. H.S. Chowdhary and Others, . It was observed "that inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material".

In the present case also, there is factual issue as to whether drafts were given by the complainant or by Salish Chandra Agarwal and the allegation of the complainant that he gave the drafts cannot be rejected without giving opportunity to him to produce evidence. Therefore, the proceedings cannot be quashed u/s 482. Code of Criminal Procedure.

The next contention of the Petitioners is that even if the case of the complainant is accepted as correct, the drafts were given to I.B.P. Company and, therefore, there is no question of misappropriation of amount by the Petitioners and no offence u/s 406, I.P.C. has been made out. The contention can also not be accepted. If the amount was given by the complainant, it could not be accepted by I.B.P. Company. In reply to the notice of the complainant, the I.B.P. Company has also denied the taking of the amount from the complainant. Therefore, according to the complainant, the Petitioners have manipulated things and has used the amount of the drafts given by the Respondent No. 1 to them for their own use. Therefore, at this stage, it cannot be accepted that no offence u/s 406, I.P.C. is made out.

Before parting, it may also be mentioned that the complaint was filed u/s 420, I.P.C. which was dropped by the Magistrate on the objection of the Petitioners. The contention of the Respondent No. 1 is that he was cheated by the Petitioners and on the pretext of giving the dealership of mobile oil of I.B.P. Company. Therefore, without being influenced with the observation made above, the trial court will consider the question whether the charge u/s 420, I.P.C. should also be framed against the Petitioners.

Considering the circumstances, the proceedings of complaint case cannot be quashed and the correctness of the allegations can be decided only after the evidence is recorded.

The petition is, therefore, dismissed.