APEX TRADERS Vs. SATNAM SALES CORPORATION

JUDGEMENT

(1.) The petitioner filed a complaint before the learned ACMM impleading the respondents No.1 to 4 as accused. The complainant alleged that in the month of June/July 2007 since he was in need of scrap he checked certain websites including Alibaba.com. There he came across the number of respondent No.4 Abhinav Goel who introduced the petitioner with respondents No.1 to 3 and that they were dealers in ferrous and non-ferrous scrap metals. Respondent No.2&3 representing to be partners of respondent No.1 agreed to supply H.R./C.R. cutting 250.m.t. @ Rs. 18,700/- m.t. in a lot of 100 m.t. The delivery of the aforesaid items were agreed to be made within 3 days of receiving the cheque amount. Believing the representation of the respondents, the complainant paid the amount in advance by three cheques amounting to Rs. 2 lakhs, Rs. 29 lakhs and Rs. 19 lakhs drawn on HDFC Bank, Ashok Niketan, Vivek Vihar, Delhi. The cheques of Rs. 29 lakhs and Rs. 2 lakhs were encashed on 11th February, 2008 and that of Rs. 19 lakhs on 12th February, 2008. Despite representation and pursuing with the respondents no goods were supplied. The complainant/ petitioner even went to Nagpur to pursue the matter but the respondents again and again asked him to wait. The complainant gave a legal notice but received no reply and then filed a complaint before the Police for registration of FIR. FIR having not been registered he approached the learned ACMM by filing a criminal complaint and simultaneously seeking directions under Section 156(3) Cr.P.C. The application of the petitioner/ complainant seeking directions under Section 156(3) Cr.P.C. was dismissed on the ground that the evidence was available with the petitioner and the learned MM proceeded with the complaint and examined witnesses of the petitioner/ complainant.

(2.) Vijay Kumar appearing as CW-1deposed that on 7th February, 2008, Mr. Gopal and Mr. Rajesh Kumar along with Mr. Abhinav Goel came to his office and discussed the matter with him and his partner Shri Ashok Kumar Garg. After discussion they agreed to purchase the following materials:- No.1 baby coils 200 m.t. @ 28,700/- per m.tonnes and No.2 H.R./C.R. cuttings 250 m.t. @ Rs. 18,700/-. They told that minimum quantity of 100 m.t. each will be supplied as first lot for which they had to make advance payment along with Rs. 2,00,000/- security for balance quantity. Since they were interested in the deal they paid the amount through three HDFC bank cheques from their firms account Rs. 29,00,000/- plus Rs. 19,00,000/- plus Rs. 2,00,000/- totalling to Rs. 50,00,000/- which had been cleared on 11.2.2008 and 12.2.2008 as per copy of bank statement Mark 'A'. They assured us that the supply will commence within three days after payment. For remembrance they draw an agreement on the letter head of M/s. Satnam Sales Corp. which is Ex.CW1/A. He deposed about his visit to Nagpur but delivery was not supplied.

(3.) On pursuing the complaint and the statements of the witnesses learned Metropolitan Magistrate vide order dated 5th September, 2009 summoned the respondents No.1 to 4 herein for offences punishable under Section 420/406/120B/506 IPC. Respondents No.1 to 3 filed a revision petition before the learned ASJ admitting that they had entered into a transaction with the petitioner for supply of 200 metric tonnes of baby coil (2 MM to 2.50 MM thick) 2500 metric tonnes of H.R./C.R. cuttings. The respondents even admitted the encashment of three cheques mentioned in the complaint, however the plea of the respondents herein was that when the agreement was entered into between the petitioner/ complainant and the respondents, simultaneously the parties entered into another agreement requesting the respondents to prepare bills in the name of S.M. Trading Corporation, E-223, Kavi Nagar Industrial Area, Ghaziabad because that was a sister concern of the petitioner. This fact was refuted by the petitioner/ complainant in his reply before the learned ASJ and he claimed that this document was a forged and fabricated document. On the basis of this document and other documents showing supply of deliveries to S.M. Trading Corporation, the learned ASJ came to the conclusion that no case was made out against the respondents for offences punishable under Sections 406/420 IPC and allegations amounted to a civil dispute and hence the order of summoning the respondents for the aforementioned offences was set aside.