VISHWANATH SINGH Vs. MOHAN LAL BANSAL

JUDGEMENT

(1.) The applicant, Vishwanath Singh, has prayed under Sec. 482 Code of Criminal Procedure for quashing the proceedings in Criminal Case No. 167 of 1978, Mohan Lal v/s. Puran Chand Criminal Case No. 167 of 1978 under Sec. 409/420 Indian Penal Code , pending in the Court of Sri R.L. Sharma, Special Judicial Magistrate Agra.

(2.) The complaint was lodged on the allegation that at the request of the Petitioner and co -accused Puran Chand Ms. Baishali Machinery Stores was appointed as authorised dealer of Annapurna Diesel engines by the complainant and the complainant delivered certain engines to the aforesaid firm and the accused issued cheques for the firm of the complainant but the same were not honoured. The complaint is Annexure 'A' to the application under Sec. 482 Code of Criminal Procedure. Paragraph 3 of the complaint recites that it was agreed that goods of the complainant shall remain in trust till the costs (sale proceeds) are cleared and paid upto the complainant else it shall be criminal breach of trust. It is further recited that the bills were sent along with the R. Rs despatched through the State Bank of India but the R. Rs were not taken against payment and ultimately on the request of the accused persons documents were sent directly and the accused persons took the consignments and issued a cheque No. 731306 dated 19 -7 -1976 for Rs. 5000 - to the "complainant in the name of his firm duly signed by the accused No. 1. But the aforesaid cheque was not honoured. Thereafter the complainant sent several letters to the accused, who showed his inability to sent a draft for Rs. 5000/ - vide his letter dated 23 -8 -1976. There was no response to the request of the complainant about the delivery of engines or their sale proceeds. Ultimately a notice dated 25 -10 -1977 was sent. The complainant also went to the city of the accused persons in December, 1977 and asked for the sale proceeds of the engines amounting to Rs. 9281. 70 paise, and the complainant was told that the sale proceeds have been expended for their own use.

(3.) A number of grounds have been urged in support of the prayer for quashing the criminal proceedings. It has been submitted that the Magistrate directed the record to be consigned in the absence of the complainant on 4 -9 -1978 but later he revived the proceedings, which he could not do. It is also submitted that any offence under Sec. 409 Indian Penal Code is not disclosed. I have already mentioned the main allegations in the complaint. Statements under Sec. 200 Code of Criminal Procedure and 202 Code of Criminal Procedure had been recorded by the Magistrate before summoning the applicant and co -accused Puran Chand. There is an annexure, being annexure 'A' to the supplementary affidavit of the Petitioner. It is a letter and acknowledgement addressed to M/s. Traco International, Nanuhai, Agra i. e. the firm of the opposite party. In this annexure there is a statement by way of acknowledgement as follows: