C. K. GUPTA Vs. BALJEET SINGH SOOD

JUDGEMENT

(1.) THIS revision petition is directed against order dated 18th August 1983 of an Additional Chief Metropolitan Magistrate, Delhi, vide which he discharged the respondent holding that the charge against him under Section 420, Indian Penal Code (hereinafter referred to as "I.P.C."), was groundless.

(2.) THE prosecution case in brief is that Baljeet Singh Sood -respondent No.1 is an Indian national holding a British passport. He carries on business in London in the name and style of M/s Kohli & Sood Limited. His brother K.S. Sood is doing business under the firm name M/s S.R. Mode (SPRL) at Brussels (Belg -ium). The said firm is stated to be a sister concern of M/s Kohli and Sood Limited. On 13th September, 1980 K.S. Sood placed an order on the firm M/s Shipra International, of which the petitioner -C.K. Gupta is the manager, for supply of 600 sets (consisting of three pieces each) of garments to the firm M/s S.R. Mode (SPRL). The goods were to be delivered at Brussels against shipping documents which were to be retired by the purchaser against payment to the banker of the complainant -petitioner i.e. on D.P. terms. Pursuant to the said order the complainant -firm despatched a part of consignment comprising 400 sets (three pieces each) valued at Rs. 34,000/on 4th November, 1980 by Panaro Airlines vide airway bill No. 020 -3892 0910 of even date. The complainant submitted the documents including bills etc. to their banker viz. Union Bank of India, Connaught Place Branch, who in turn forwarded the same to the customer's bank, namely, Bank of Baroda, Brussels Branch, for delivery to the purchaser against payment. However, the purchaser did not retire the documents from the aforesaid bank and on 13th January, 1981 they sent a telex to the complaint seeking 60 days credit for payment of the bill in question and two more bills. The Union Bank of India communicated this request of the purchaser to the complainant vide their letter dated 23rd January, 1981. However, the complainant refused to give any credit to the purchaser and this fact was communicated to the banker of the purchaser by the banker of the complainant vide telex dated 14th February, 1981. Thereafter B.S. Sood respondent No. 1 contacted the complainant at their office at Delhi on 24th February, 1981 and he asked the complainant for delivery of the abovementioned consignment to his firm M/s FEBEX RUE BROGINEIZ at Brussels against a cheque for £ 1828/ - i.e. the amount equivalent to the amount of the bill, drawn by him on Punjab National Bank, London. He explained that his brother had no money to pay for the consignment. Believing that the said cheque would be encashed on presentation, the complainant instructed the Bank of Baroda, Brussels, through their, banker - Union Bank of India to deliver the consignment to the firm of respondent No. 1 viz. M/s FEBEX in Belgium without payment. Consequently, the said firm collected the goods without making any payment from the Airlines mentioned above. However, the cheque issued in favour of the complainant for the price of the goods bounced on presentation to the banker of the respondent, namely, Punjab National Bank, London Branch and was returned to the complainant with the remark "refer to drawer." Feeling that they had been cheated, the complainant lodged a complaint (undated) with the Deputy Commissioner of Police (Crime), New Delhi, inter alia, stating that they had accepted the cheque in good faith in the belief that the same would be honoured on presentation but it was manifest that the respondent -B.S. Sood had come to India with a well -planned conspiracy to cheat the complainant in this manner.

(3.) MR . B.B. Lall, the learned counsel for the petitioner, has canvassed with great fevour that the learned, Magistrate has slipped into a grave error in considering the defence of the respondent at this stage and in doing so he has been apparently swayed by copies of the documents which were no doubt produced by the investigating officer alongwith the challan but the genuineness and authenticity of which has yet to be proved. In particular, he has invited my attention to the photostat copies of a couple of letters which were allegedly written by the firm of the respondent (M/s Kohli & Sood Ltd.) to the complainant. The first letter is dated l0th March, 1981. By this letter the respondent called upon the complainant to issue credit note for the shortages in the shipment and also to pay demurrage and other charges incurred by them i.e. the respondent, which were quite excessive. He alluded to some telephonic talk between him and the complainant during which the letter had promised to cover the respondent by a credit note in respect of the shortages in the shipment. The respondent further informed the complainant that in the meanwhile he had asked their banker to hold the cheque which had been issued in favour of the complainant and had been received by their bank. The respondent, however, offered to encash the cheque in case he received the credit note in time but feeling that he had no other alternative but to send the cheque back.