S K MEHRA Vs. STATE

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure (Code for short) read with Article 227 of the Constitution of India has been filed for quashing an order dated 26.10.1991 of the learned Metropolitan Magistrate, New Delhi whereby the petitioner was summoned for an offence under Sections 403 and 406 Indian Penal Code and for quashing of the aforesaid complaint on the basis of which the petitioner was summoned.

(2.) The case in the complaint is that the complainant M/s Comtel International (P) Ltd. New Delhi issued four bank drafts of different amounts towards earnest money for purchase of four plots from New Okhia Industrial Development Area (NOIDA). The complainant, however was not succesful in the draw of lots and, therefore, the amount of two drafts of Rs.21,500.00 and Rs.l6,200.00 was refunded to the complainant. Initially the refunded. cheques were issued by NOIDA in the name of the petitioner, S.K. Mehta who was one of the Directors of the Company. He, however, ceased to be a Director with effect from 22.9.87 and therefore, on the request of the Company the cheques were refunded in the name of the Company itself. The balance amount of Rs. 13,000.00 paid by two separate drafts, however, was not refunded and, therefore, the Company wrote a letter to the Authority which replied that the aforesaid amount of Rs. 13,000.00 had been refunded to the petitioner vide two cheques ofRs.6500.00 each dated 18.11.87 drawn on Canara Bank. Therefore, the Company called upon the petitioner accused to refund the said amount. The petitioner, however, intentionally and knowingly holding himself as a Director of the Company received the two cheques for and on behalf of the Company and illegally and unauthorisedly mis-appropriated the same. The further case is that the petitioner was entrusted with the aforesaid drafts by NOIDA for and on behalf of the complainant and was liable to return the same to it which he failed to do despite repeated requests and demands, and thus committed an offence under Section 630 of the Companies Act read with Sections 403,406 and 409 IPC.

(3.) After recording preliminary, evidence of two witnesses, namely, S.K.Gupta and N.K. Sharma, the Magistrate summoned the accused only under Section 403 and 406 Indian Penal Code It is against this order that this petition has been filed.