ROOPLAL JINDAL Vs. ADALAT PRASAD

JUDGEMENT

(1.) The petitioner is the sole proprietor of M/s. Deepdk Handloom Industries engaged in manufacture of handloom fabrics. The respondent No. 1 is a textile representative and general order supplier and mainly operates in Eastern sectors of the country through his business associates in and around Calcutta. The respondents No. 2, 3 ; and 4 deal in textile goods and operate through respondent No. 1. On 17.8.1990, the ' petitioner filed a complaint under Sections 120-A/1 SO-B/405/406/415/420/463/465/ 468 Indian Penal Code against the respondents and others on the allegations that respondents No. 2,3 and 4 and others operate through respondent No. 1 to cheat and defraud other suppliers of goods located far off from Calcutta. Their modus operand! is to approach innocent manufacturers/suppliers through respondent No. 1 and to place orders for the supply of goods to various parties, fraudulently induce the suppliers to deliver the goods, dishonestly divert the goods to their co-associates and misappropriate the amount of goods supplied by the manufacturers/suppliers. In February, 1998, the respondents hatched a conspiracy to defraud the petitioner and pursuant to the said conspiracy the respondent No. 1 approached the petitioner and placed orders for supply of goods to the remaining respondents. The petitioner supplied the goods to the respondents and others. The respondent No. 2 and 3 made some payments to respondent No. 1 for the goods supplied by the petitioner but the amount so paid was misappropriated by the respondent No. 1. Even some of the latters despatching the goods (annexures B-5, C-4 and D-4) were also forged by the respondents and some of the goods supplied by the petitioner were also misappropriated by the respondent. It is the further case of the prosecution that the respondent Bajinder Sinha cheated the petitioner by issuing certain cheques which were dishonoured by the Bank.

(2.) The petitioner examined three witnesses in support of the averments made in the complaint. By the order dated 26.5.1992, the learned Magistrate took cognizance of the offences punishable under Sections 420/120-B Indian Penal Code against the respondents and issued process against them. Aggrieved thereby, the respondents filed the petition (Crl. M. (M). No. 501/93) before this Court. By the order daled 4.3.1993 passed by this Court in Crt. M. (M) No. 501/93, the respondents were directed to approach the trial court for re-calling the process in view of the judgment of the Apex Court in K.M. Mathew Vs. State of Kerala and Another (1992) 1 SCC 217. Pursuant to the said direction, the respondents filed an application before the trial court for re-calling the process. By the order dated 28.1 -1995, the learned Magistrate allowed the application and dismissed the complaint. Feeling aggrieved, the petitioner has come up in revision before this Court.

(3.) Assailing the validity of the impugned order dated 28.1.1995, learned counsel for the petitioner contended that the learned Magistrate has committed a manifest illegality in re-calling the process issued against the respondents. In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others. AIR 1976 SC 1947, the Apex Court has categorised the following cases in which an order of the Magistrate issuing process against the accused can be quashed or set aside :-