NEMICHAND LALCHAND JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present Criminal Misc.Application u/s.482 of the Code of Criminal Procedure has been preferred by the applicants herein ­ original accused Nos.2 & 3 to quash and set aside the impugned order of issuance of process/ summons passed by learned Judicial Magistrate, First Class, Gandhidham-Kutch in Complaint No.4046 of 2007 for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code.

(2.) RESPONDENT No.2 herein ­ original complainant had filed the complaint before learned Judicial Magistrate, First Class, Gandhidham-Kutch against the applicants herein and others for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code, which was registered as Criminal Inquiry Case No.9 of 2007. It was alleged in the said complaint that original accused No.1 posing himself to be proprietor of one Pisces Exim approached the complainant on 28/01/2007 seen the goods in question and agreed to purchase the same on payment through the cheque and he executed agreement on behalf of Pisces Exim and told the complainant that the said goods to be transferred to the applicants ­ Navkar Ispat Limited. It is alleged that after entering into the agreement and purchasing the said goods by original accused No.1, the same was to be transported to accused Nos.2 & 3- applicants herein through Neelkanth Transport and the said goods were to be loaded in the trucks and in the meantime, it was late night and accused No.1 went to one Hotel "Madhuvan" and stayed in the Hotel "Madhuvan", Room No.202 and told the complainant to come to Hotel and collect the cheque. It was further alleged in the complaint that therefore when his elder brother went to the Hotel to collect the cheque, it was found that original accused No.1 has checked out and left the Hotel and it was found that his original name was Sumit Jena and he disclosed his identity as Babulal, proprietor of Pisces Exim. It is also alleged in the said complaint that thereafter the complainant immediately called the applicants not to make payment with respect to the goods, which they might have received and to that the applicants herein ­ original accused Nos.2 to 4 informed that they have purchased the goods from the sister concern of Sumit Jena and the same is credited in the account of Sumit Jena. Therefore, it is alleged that the applicants and other accused have hatched conspiracy and committed the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. Initially learned Magistrate has passed an order to stay inquiry and stay further proceedings of the case u/s.210 of the Code of Criminal Procedure on the ground that the complainant has already filed one complaint before Police and investigation is going on. It appears that thereafter Investigating Officer has initially submitted the report, which was objected by the complainant by submitting that Investigating Officer has submitted report without proper investigation and without recording statements of the witnesses on behalf of the complainant and even the accused persons. Therefore, it was requested to pass an order for inquiry and accordingly learned Magistrate has passed an order of inquiry u/s.202 of the Code of Criminal Procedure.

(3.) MR .Anand Gogia, learned advocate has appeared on behalf of the applicants and he has submitted that the applicants have not committed any offences as alleged under Sections 406, 420 and 114 of the Indian Penal Code. It is submitted that as such the applicants are bonafide purchasers of the goods in question from M/s.Jena Enterprise and payment was made to the said M/s.Jena Enterprise on 31/01/2007, which is reflected from the Statements of Accounts of the applicants herein ­ Navkar Ispat Limited. Therefore, it is submitted that when the applicants are bonafide purchasers, who have purchased the goods in question from M/s.Jena Enterprise, sister concern of Pisces Exim and there was no entrustment of the goods by the complainant and according to the complainant entire transaction was with Babubhai, Proprietor of M/s.Jena Enterprise and Pisces Exim, it cannot be said that the applicants have committed any offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. Therefore, it is requested to allow the present application and to quash and set aside the impugned FIR so far as the applicants herein are concerned.