L.D.Khanna vs Surinder Gill

K.P.S. Sandhu, J. (Oral)

This is a revision filed by L.D. Khanna petitioner against the charge under section 409 of the Indian Penal Code framed against him by the Additional Chief Judicial Magistrate, Chandigarh, vide his order dated 30th July, 1984.

The facts which gave rise to this petition are as follows. Surinder Gill respondent is a partner of two sister concerns, namely, Messrs Gilco Industries, Industrial Estate, Chandigarh, and Sidh Sons, Industrial Area, Chandigarh. Both these concerns are registered partnership firms. These concerns manufacture electrical appliances, i.e., geysers washing machines and room coolers. The petitioner L.D. Khanna deals in electrical appliances as a retail dealer at Jalandhar. His showroom is located on the G.T. road, Jalandhar. That concern is known by the name and style of Messrs G.D. Khanna and Sons. L.D. Khanna petitioner is also the resident director of Messrs Edison Lightcraft Private Limited at Jalandhar.

Messrs Edison Lightcraft Private Limited entered into an agreement to receive the goods manufactured by Messrs Gilco Industries and Messrs Sidh Sons for sale in the showroom at Jalandhar. As per the agreement, the petitioner was to pay the price of the goods to Gilco Industries after the sale of the same by him. L.D. Khanna executed thirty days hundis for the payment of the amounts received by the sale of goods supplied to Messrs Edison Lightcraft through him as a Local director. The good receipts were directly sent to L.D. Khanna so that he could take the delivery of the goods. As per the allegations contained in the complaint lodged by Surinder Gill, L.D. Khanna embezzled goods worth Rs. 84,461 which he sold in his own shop Messrs G.D. Khanna and Sons as he had dominion over the goods for the purpose of sale on behalf of Messrs Gilco Industries. The five items regarding which L.D. Khanna is alleged to have committed breach of trust are given in para 6 of the complaint. The petitioner was summoned by the trial Magistrate after recording preliminary evidence produced by respondent Surinder Gill. (complainant). After L.D. Khanna put in his appearance in the Court of the Additional Chief Judicial Magistrate, Chandigarh, the learned trial Magistrate recorded the evidence as produced by the complainant before the framing of the charge and after considering the same the learned trial Magistrate proceeded to frame the charge against the petitioner under section 409 of the Indian Penal Code. Aggrieved by the order of framing the aforesaid charge against him, the petitioner has come up in revision to this Court.

It is in evidence that L.D. Khanna petitioner entered into an agreement with Messrs Gilco Industries and Sidh Sons as a local director of Messrs Edison Lightcraft Private Limited. The received the goods receipts directly at Jalandhar and also received the goods in question directly from Messrs Gilco Industries. The hundis for payment of the amounts were also issued by L.D. Khanna in his capacity as such. While summoning the petitioner the learned trial Magistrate held that city is stood proved that Messrs Edison Lightcraft Private Limited entered into an agreement to receive electrical goods manufactured by Messrs Gilco Industries and Sidh sons for the purpose of sale in their showroom at Jalandhar and executed hundis for payment of the amount received by the sale of goods entrusted to Messrs Edison Lightcraft Private Limited through the petitioner and that the goods were entrusted to the petitioner but the petitioner embezzled the same while paragraph 6 of the order of Additional Chief Judicial Magistrate dated 30th July, 1984, framing the charge reads as under :

"From the evidence discussed above it is established that complainant is a partner of Messrs Gilco Industries and Messrs Sidh Sons. An agreement was executed between Messrs Gilco Industries and M/s Sidh Sons and between M/s. Edison Light Craft Limited, Chandigarh. In accordance with the agreement goods were entrusted by M/s. Gilco Industries to the accused for further sale and price of the goods was to be paid by M/s. Edison Light Craft Private Limited and L.D. Khanna accused was incharge of M/s. Edison Light Craft Pvt. Limited. The price of the goods was not paid by L.D. Khanna and thus approximately an amount of Rs. 84,000/ been embezzled."

So, the crux of the summoning order and the order framing the charge is that the goods were entrusted to the petitioner by Messrs Gilco Industries and Messrs Sidh Sons for sale on their behalf.

Complainant Surinder Gill while appearing as his own witness in the Court stated in no uncertain terms in crossexamination that the aforesaid goods were sold to Messrs Edison Lightcraft Private Limited on credit for about two months and that, as per the terms of the agreement, if the payment was not made by Messrs Edison Lightcraft Private Limited within the aforesaid period of two months, Messrs Gilco Industries and Messrs Sidh Sons were entitled to get interest on the amount due to them. It may be pertinent to mention here that the complainant failed to produce the account books of the firm in spite of the request of the defence and a notice having been given by the Court to the complainant. The complainant has further stated in crossexamination that he could not say without seeing the record that the goods were got released by Messrs Edison Lightcraft Private Limited. He could not further say that the goods which were sent though the abovementioned goods receipt were received back. He further stated that the goods worth Rs. 10,350 mentioned in para 6 of complaint were sent to Moga and not to Jalandhar. He further stated that he could not say without checking the record whether he had any receipt regarding delivery of goods worth Rs. 37,288 and Rs. 35,081 mentioned in para 6 of the complaint. So, from the statement of the complainant it is clear that he is not sure whether the goods mentioned in para 6 were received by Messrs Edison Lightcraft Private Limited or not. It is further clear that whatever goods were supplied to Messrs Edison Lightcraft Private Limited were sold to them under the agreement and that Messrs Gilco Industries and Messrs Sidh Sons were only entitled to receive the price of the same within two months failing which they were entitled to charge further interest from Messrs Edison Lightcraft Private Limited through the petitioner. So, in this situation it cannot be said that any trust in favour of Messre Gilco Industries and Sidh Sons was created by the petitioner. So, from the evidence on record it cannot be said the case against the petition has been made out which if unrebutted, would warrant his conviction.

These proceedings taken up against the petitioner by Surinder Gill complainant are nothing short of the abuse the process of the Court to coerce the petitioner to discharge his civil liability, if any. In this view of the matter, this revision petition is allowed and the charge framed against the petitioner by the learned trial Magistrate vide his order 30th July, 1984, is quashed.