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Judgment
Palok Basu, J.—These two applications have been filed u/s 482 Code of Criminal Procedure challenging the proceedings initiated by way of complaint giving rise to Criminal Case Nos. 594 of 1981 and 741 of 1981, both of which were pending in the court of Judicial Magistrate, Hathras district Aligarh.
Heard Sri Ratnesh Kumar Pandey, learned Counsel for the applicants and Sri A.K. Gupta, learned Counsel for the opposite party.
Short facts are that the applicants in both the cases were having some business of selling oil in District Ballia while the applicants were so doing in Hathras and they have approached the opposite party at their premises for supply of certain tins of mustard oil. It is stated in the complaint that an agreement had been made, that if a Hundi is sent through the person carrying the goods they will retire the Hundi and take delivery of the goods. However, the complainant states that the Hundi was sent straight to the applicants and he got delivery of the mustard oil tins and then did not retire the Hundi through the bank. On these facts it was stated that an offence u/s 420 IPC read with Section 406 IPC was made out. One further averment in the complaint is that the applicants had given introduction of Firm at Allahabad by showing a letter which did not appear to be genuine.
A perusal of the complaint further indicates that the applicants and the opposite party were known from much before the present transaction had seen the light of the day. In para No. 5 of the complaint the specific allegation about Hundi is that ''UCT TEL KI KIMAT ABHIUKTGAN SE PRAPT KARNE HETU BANK DWARA ABHIYUKTGAN KE PAAS BHEJI.''
In the supplementary affidavit the complainant Vijay Krishna Upadhyaya had tried to explain the method and mode of sending of and retiring of the Hundi. This was replied to in detail by the applicants through a supplementary affidavit, copy of which was served on 1-2-1988. No rejoinder affidavit to that has been filed.
Neither the supplementary affidavit nor the supplementary counter affidavit were necessary in view of the averments made in the complaint which has been quoted above. It is more than clear that there is no stipulation of prior payment by the applicants before delivery of the tins may have been made. It follows, therefore, that in normal business transaction the goods were supplied and the applicants were expected to send the bill amount or Hundi amount in due course. Consequently the allegations made in the complaint did not go to make out any charge of impersonation or misrepresentation. Therefore, the order passed by the Magistrate in summoning the applicants under Sections 420/406 IPC is misconceived and these applications, therefore, have to succeed.
In view of the aforesaid discussions these applications are allowed. The Complaint Cases Nos. 594 of 1981, Vijai Krishna Upadhyaya v. Janardan Prasad and Ors. and No. 741 of 1981, Vijay Krishna Upadhyaya v. Bharat Prasad, both pending in the court of Judicial Magistrate, Hathras and all further proceedings therein are quashed.