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Judgment
Pradeep Nandrajog, J.—Three prayers have been made in the petition. The same are as under:
a. Set aside the impugned orders dated 12.10.2004 and 23.10.2004 passed by the learned Court of Shri Sunil Kumar Aggarwal, Metropolitan
Magistrate, New Delhi in the complaint titled as ""Panchagni Agro v. G. Bhattacharya""; and
b. Quash the proceedings in the complaint u/s 190 of Code of Criminal Procedure read with Section 156(3) of the Code of Criminal Procedure
for the alleged offences under Sections 409, 418, 420 and 424 of the IPC allegedly committed by the petitioner pending before the learned court
of Shri Sunil Kumar Aggarwal, Metropolitan Magistrate, New Delhi in the complaint titled as ""Panchagni Agro v. G. Bhttacharya""; and
c. Direct the respondent/complainant to return the said goods, seized under the orders dated 12.10.2004 and which have been released in favour
of the respondent/ complainant vide orders dated 23.10.2004 passed by the learned court of Shri Sunil Kumar Aggarwal, Metropolitan
Magistrate, New Delhi in the complaint titled as ""Panchagni Agro v. G. Bhttacharya
Order dated 20.4.2005 reads as under:
Present : Mr. Ashim Vachar for the petitioner. Mr. Aftab Rashid for R-2.
Crl. M.C. 2562/2004 & Crl. M.A. 8719/2004
The prayer a & c of the petition have become infructuous in view of the fact that the goods in question seized by virtue of order dated 12.10.2004
and release to the respondent by virtue of order dated 23.10.2004 have been sold by the respondent in the open market. The only prayer that
survives is the one at b of the prayer.
Learned Counsel for the petitioner says that he will pursue the prayer b.
Trial Court record is not before this Court which is required for hearing the arguments. Police report has not been filed so far.
Trial Court be summoned for arguments on 22nd September, 2005.
sd/-
MANJU GOEL, J.
Thus, arguments were advanced by Learned Counsel for the petitioner limited to prayer (b).
Averments in the complaint, quashing whereof has been prayed for need to be noted for deciding prayer (b).
Complainant, a division of Panchagni Energies Pvt. Ltd. stated that the accused G. Bhattacharya introduced himself as proprietor of M/s EEM
Gee International and stated that he was a garment fabricator having a factory at C-163, Okhla Industrial Area, Phase-I, New Delhi. It was further
stated that since the complainant had an export order for jogging suits, the job work for stitching the jogging suits was entrusted to G.
Bhattacharya. Terms of the agreement were reduced into writing as per agreement dated 14.6.2004. It was further stated in the complaint that in
terms of the agreement dated 14.6.2004, fabric was procured from Vallabh Yarns Pvt. Ltd., Ludhiana. That it was directly delivered to the
accused. That part payment of the fabric to Vallabh Yarns Pvt. Ltd., Ludhiana was made by the complainant and as per the agreement dated
14.6.2004 part payment had to be made by the accused. It was further stated that the accused informed the complainant that due to labour trouble
he was unable to complete the job. That the complainant requested one Vishal Enterprises to part fabricate the jogging suits and for which payment
was directly made to Vishal Enterprises by the complainant. That 7320 sets of jogging suits had to be fabricated. That the accused offered for
inspection 2520 jogging suits. That the complainant received a telephonic call from an unknown person that the accused had started selling the
jogging suits in the local market.
The complaint ends by stating that neither were the jogging suits which were already manufactured handed over to the complainant nor was
remaining fabric returned.
Agreement dated 14.6.2004 reads as under:
AGREEMENT
With reference to meeting on 12.06.04 between Sh. G. Bhattacharya of M/s Emm Gee International and Shri Rajesh Kumar of M/s Panchagni
Agro, the following terms and conditions have been formulated to execute the order of jog suits (7320 sets) of velour.
The exports will be done in the name of Panchagni Agro, E-174, Grnd flr, Kalkaji, New Delhi-19.
The total exportable merchandise of 7320 sets will be made by Emm Gee International at C-163, Okhla Ph-I including fabric/stitching/packing
with all the accessories.
The total cost/price upto Mumbai Port is fixed at Rs. 471/- totalling to Rs. 3447720/-.
Emm Gee International will be responsible for quality/workmanship as per specifications given by the buyer.
Emm Gee International will hold themselves responsible for any claim/rejections of garments or any losses which gets incurred due to quality or
delay.
M/s Panchagni Ago will be investing Rs. 17.65 lacs towards pre-shipment advance for procurement of fabric.
The balance of Rs. 2.35 lacs will be generated if required by M/s Pancahgni Agro.
The balance of Rs. 14.47 lacs will be paid after the shipment.
The payment of accessories/stitching/ finishing has to be done by Emm Gee International.
A total bill for shipment of 7320 pcs will be raised by M/s Emm Gee International to M/s Panchagni Agro which would not exceed Rs. 14.47
lcs.
Any discount or air freight which may arise due to delay or due to quality issues in the said shipment would be borne by M/s Emm Gee
International.
for Emm Gee International for Panchagni Agro
sd/- sd/-
Proprietor CEO
Petitioner seeks quashing of the complaint inter alia alleging that by a subsequent agreement dated 10.7.2004 it was agreed that the accused
would fabricate only 2520 jogging suits and not 7320.
He states that he received fabric to manufacture only 2520 jogging suits. It is stated that the accused manufactured 2520 jogging suits but the
complainant never came to lift the material and hence the accused had no option but to deal with the goods manufactured as he desired.
Seeking quashing of the complaint, it is stated that the petitioner received 4007.73 kg. of fabric from Vallabh Yarns Pvt.Ltd. It is stated in the
petition that 3330 kg. fabric was used to fabricate 2520 jogging suits. It is stated that out of 4007.73 kg. fabric received from Vallabh Yarns
Pvt.Ltd., some fabric was diverted to M/s Context Exports at the asking of the complainant.
Complainant denies having entered into any subsequent agreement much less agreement dated 10.7.2004 to reduce the number of jogging suits
to be manufactured by the accused from 7320 to 2520 sets.
It was urged by the Learned Counsel for the petitioner that the petitioner had paid Rs. 3 lacs to M/s Vallabh Yarns Pvt.Ltd.
On the afore-noted facts, following features stand out:
a) Agreement dated 14.6.2004 is not in dispute.
b) The alleged agreement dated 10.7.2004 is disputed by the complainant. Thus evidence is required.
c) Petitioner admits receiving 4007.73 kg. fabric from M/s Vallabh Yarns Pvt.Ltd. but states that 1240.10 kg. was diverted to M/s Context
Exports at the asking of the complainant.
d) If what is stated by the accused is correct, accused has consumed 2763.63 kg. of fabric.
e) The accused has to account for said consumption.
f) Whether the complainant refused to lift 2520 jogging suits which fabricated or not requires evidence to be led.
Prima facie, there being an entrustment of fabric to the accused, the accused has to account for the same. Assuming that the accused has paid
Rs. 3 lacs to M/s Vallabh Yarns Pvt. Ltd., accused could not have appropriated the entire yarn. At best, accused was entitled to recover Rs. 3
lacs plus the fabrication cost.
As a fabricator, and being entrusted with the fabric, the accused was under a fiduciary relationship with the complainant.
I refrain from discussing the various letters which were exchanged between the parties for the reason, any discussion thereon may prejudice the
trial.
Sufficer would it be to note that at this stage, what is required to be considered is, whether the complaint makes out a case for taking
cognizance thereof and proceeding against the accused.
On the broad contours of the controversy noted herein above, it cannot be said that the complaint does not make out a case to proceed and
take cognizance of offence u/s 409/420 IPC.
The petition is dismissed.