SANJAY GOYAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicants seek quashing of the complaint being Criminal Case No.826 of 2009 lodged by the respondent No.2 herein alleging commission of the offences punishable under sections 406, 420 and 114 of the Indian Penal Code.

(2.) THE respondent No.2 herein lodged the above referred complaint against the applicants herein stating that he is a dealer of dyes and chemicals as well as the sole selling agent and distributor of different companies as a wholesale agent of dyes and chemicals. That the applicants herein formed a company called Himachal Fibres Limited and were obtaining goods on credit and, thereafter, not returning the amount and thereby committing cheating and criminal breach of trust. It was the case of the respondent No.2-complainant that the accused used to often come to their office and inform them that they (the accused) are purchasing chemicals and dyes from various companies and that they wanted to purchase dyes from them (the complainant), pursuant to which, the complainant informed them that dyes would be delivered to them subject to the condition that they have to make payment thereof through cheques. As the accused were ready and willing to make payment through cheques, the complainant, placing trust in them, started sending goods to them. In connection with the goods supplied by the complainant, the accused had given cheques drawn on Canara Bank to the complainant, which were presented before the Bank on various occasions; however, all the cheques came to be returned. When they talked with the accused in this regard, they had given a vague reply. It was the case of the complainant that the accused had obtained goods worth Rs.78,86,236-00 from the complainant and were not paying the amount in respect thereof. The complainant had, therefore, issued R.P.A.D. notice to the accused for payment of the amount and had made a number of telephone calls and written several letters, however, the accused had not given any reply. According to the complainant, the accused had taken goods on loan worth crores of rupees from several persons and had cheated and misappropriated the same, and that they were not making payment in respect of the goods to any person. It was further stated that the complainant had instituted a summary suit in the City Civil Court at Ahmedabad, wherein a decree had been passed for a sum of Rs.1,35,65,326-00. That earlier the address of the accused at Delhi were shown as 24, Community Center, East of Kailash, New Delhi- 110005. However, upon going to serve the decree upon the accused, the office was found to be closed as they had shifted to other premises. After carrying out search at Delhi for several days from business people in the neighborhood, they had been able to locate the accused and the accused had, on the contrary, asked the complainant as to how he was able to obtain their address. When the complainant called upon the accused to return the amount, they had gathered together and abused him and were in the process of attacking him, whereupon the complainant had left the place. It was alleged that the accused have cheated the complainant and have committed criminal breach of trust in respect of crores of rupees and, as such, the complainant was required to be lodged the complaint for the offence punishable under sections 406, 420 and 114 IPC.

(3.) THE application was vehemently opposed by Mr. Suren M. Shah, learned advocate for the respondent No.2, who denied that the transaction between the parties is entirely of civil nature. It was submitted that the civil court has passed a decree in favour of the respondent No.2 in Summary Suit No.2236 of 2005, however, the applicants herein under one pretext or the other, have not paid any amount in satisfaction of the said judgment and decree. It was submitted that it is not true that all the events alleged in the complaint have happened prior to the year 2006 and that the cheques issued by the company were never signed by any of the applicants. The transaction between the parties took place continuously from the year 2001 till the date of filing of the suit and the criminal complaint and that the cheques were signed by the then Managing Director of the Company known as Himachal Fibres Limited. It was submitted that the applicants herein, being the Directors of the said Company, are answerable for the debt of the Company. It was submitted that the disputed transaction took place from the year 2000 up to the date of filing of the suit, that is, in the year 2005 and that the applicants herein have acknowledged the debt and the liability to pay the amount as per the accounts maintained by the respondent. It was, accordingly, urged that the offence as alleged in the complaint has in fact been made out against the applicants herein and, as such, there is no warrant for exercise of powers under section 482 of the Code.