RAMASWAMI AND ANR Vs. STATE

JUDGEMENT

(1.) This is a petition to send for the records in C.C. No. 204 of 1976 on the file of the Sub Divisional Judical Magistrate, Nagapattinam and quash the charge under S. 420, read with S. 34 of the Indian Penal Code, framed against accused 2 and 3 alone. Accused 2 and 3 in C.C. No. 204 of 1976 on the file of the Sub Divisional Judical Magistrate, Nagapattinam, are the only petitioners now. They are partners of a firm which is carrying on business in hardware, paints, cements, etc., at No. 30, V.R.M. Road, Vijayapuram, Tiruvarur, under the name and style of M/s. Annamalai Chettiar and Sons. Govindaswami, the first accused and Ramalingam, the fourth accused are two of the four partners of the firm. Govindaswami is the Managing Partner of the firm.

(2.) On 5th July 1975, the complainant before the police, viz,. Abdul Hameed, who had a permit in his favour for purchasing 160 bags of Dalmia Cement, approached the Managing Partner Govindaswami for supply of the cement for which the permit had been issued. The Managing Partner sent his clerk with Abdul Hameed to take delivery, of 160 bags of Dilmia Cement which were sold by Govindaswami to the said Abdul Hameed. Delivery was taken of 160 bags of what were represented to be Dalmia Cement bags on 5th July 1975. The bill for the sale of the 160 bags were prepared by the fourth accused and issued to the purchaser. After about 29 days, when the work of construction had commenced, the mason who was in over-all charge of the construction work is said to have drawn the attention of Abdul Hameed to the contents of a bag which was represented to be a bag of Dalmia Cement but was not. On examination it was found to contain an inferior variety of stuff called Ramco Cement. On further examination 14 more bags were found to contain an inferior variety of what is called Ramco Cement. According to the complainant Abdul Hameed, he met Govindaswami at his place of business in the aforesaid shop and complained that 15 out of the 160 bags supplied to him contained an inferior variety of cement called Ramco Cement. Govindaswami is alleged to have stated that some mistake might have been committed and agreed to replace the bags of Ramco Cement with Dalmia Cement. It is further alleged by the complainant that he wanted the expenses of the transport to be borne by Govindaswami, that he refused to do so and that when he threatened to file a complaint before the police, Govindaswami defied him to do his worst. There upon he has filed the complaint which has been registered as a case in Crime No. 522175 of Tiruvarur Town Police Station. However the charge-sheet has been laid not only against the first accused who sold the 160 bags and the fourth accused who made out the bill, but also against accused 2 and 3. It is not alleged in the complaint that accused 2 and 3 were present at any time when the transaction was entered into. Even during the course of the investigation, no witness has made any statement implicating accused 2 and 3. In the circumstances, accused 2 and 3 have come forward with this petition for quashing the proceedings as against them only.

(3.) The circumstances in which the High Court can exercise the inherent power under S. 561-A of the Old Criminal Procedure Code corresponding to S. 482 of the Criminal Procedure Code now in force, have been considered by their Lordships of our Supreme Court in R.P. Kapur v. State of. Punjab, 1960 AIR(SC) 866 Gajendragadkar, J., as he then was, in considering the nature and scope of the inherent power of the High Court, has laid down that--