RAJNIKANT AMBALAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In all the three Miscellaneous Criminal Applications identical questions of law and fact are involved and the parties are same and therefore they are disposed of by common judgment.

(2.) Miscellaneous Criminal Application No. 158 of 1985 arises out of the order in Criminal Case No. 1612 of 1984 Miscellaneous Criminal Application No. 159 of 1985 arises out of the order in Criminal Case No. 1613 of 1984 and Miscellaneous Criminal Application No. 160 of 1985 arises out of the order in Criminal Case No. 1614 of 1984 by the learned Metropolitan Magistrate 5 Court Ahmedabad issuing process for the offences punishable under secs. 406 and 420 Indian Penal Code against the petitioner on the complaint filed by opponent No. 2 Hitendrabhai Vadibhai Kapasi the Accountant of Parekh Decorators.

(3.) Opponent No. 2 the Accountant of Parekh Decorators filed the complaint contending that he is serving as Accountant in Parekh Decorators and has no personal knowledge about the allegations in the complaint but has information about the accounts etc. of Parekh Decorators as he is serving there as Accountant and therefore at the instance and under the instructions of the partner and Manager of Parekh Decorators he has filed the complaint. As contended in the complaint the petitioner-accused is the proprietor of Happy Home Decorators and Parekh Decorators had allowed him to use some part of the premises of Parekh Decorators as a licensee and in that the petitioner-accused had to display and sell his goods and had to pay licence fees and commission on the actual sale of goods as per the terms and conditions of the agreement. The agreement was entered into in the year 1972 and subsequently final agreement dated 15-4-1980 was entered into between the parties and the same was to remain in force till terminated. As per the agreement the petitioner-accused had to pay at the rate of 42 per cent. On the total amount of yearly sale proceeds subject to the minimum of Rs. 1 470 per month to Parekh Decorators. That agreed amount for commission and service charges was to be increased by 5 per cent every year. It was also agreed that Parekh Decorators had to include in their advertisement for the furniture etc. of the petitioner-accused and for that the petitioner-accused had to pay at the rate of 4 1/2% per cent. of actual sale. According to opponent No. 2 it was also agreed that the petitioner had to credit the sale amount with Parekh Decorators who had to deduct the amount of commission and service charges at the interval of 15 days and at the end of the month surplus amount was to be paid to the petitioner. It is also stated that Parekh Decorators decided to terminate the agreement and served notice to the petitioner-accused calling upon him to handover the possession on or before 1-12-1982 But instead of handing over possession the petitioner filed Civil Suit No. 4918 of 1982 in the City Civil Court Ahmedabad and asserted the tendency rights in the premises and the Court granted ad interim injunction which was subsequently vactated. It is also contended in the complaint that during the hearing of the interim injunction application the petitioner produced copies of the Income-tax returns for the years 1980-81 1981 and 1982-83 and it transpired from the returns that the petitioner had to pay the total amount of Rs. 29 700 for the commission etc. in the year 1980-81 and instead of that an amount of Rs. 17 640 was paid and misappropriated an amount of Rs. 12 60