V KOTHARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Both the aforesaid applications arise out of the complaint filed by the opposite party No. 2 Sudhir Chopra numbered as Complaint Case No. 2617/89 u/Ss. 420/ 406/120-B, IPC. of the Court of Chief Judicial Magistrate, Moradabad, against the 11 accused, the applicant V. Kothari and M/s. Sunds Defibrator AB, being accused Nos. 1 and 11 respectively. In both the cases State of U. P. and Sudhir Chopra are opposite parties Nos. 1 and 2 respectively. Since these two applications relate to the same complainant case, they were heard together and are being disposed of by this judgment.

(2.) Sudhir Chopra claimed himself to be the Vice President of a Company known as Best Boards Limited having its factory at Gajraula, Police Station Gajraula District Moradabad, U.P. The allegations in the complaint in short are that M / s Sunds Defibrator AB is a company with its registered office at Sweden. This company works in India through its representatives such as accused Nos.4 to 10. There is another company arrayed as accused No.3 while accused Nos. 1 and 2 are its executives and managers. An agreement was entered into between the complainant Company with the accused who are in league with each other for establishing a Dagasse Based Medium Density Particle Board Plant, Laminating Plant and Thermo Oil Plant, the cost of which project runs into several crores of rupees. The accused were responsible for supply of equipment and materials according to specifications and for that purpose executed bank guarantees to gain confidence of the complainant company. On the said assurance the complainant company made payments towards costs of the machinery, equipments and materials by letters of credit opened in the bank. According to the terms of the contract it was the responsibility of the accused persons to erect and fix all the machinery, equipment and materials according to the guaranteed performance parameters stipulated in the contract. Due to default of the accused persons, the plant could not commence in December, 1987 as per the contract because several defects were detected in the equipments and materials supplied by the accused, for which various letters were written. The plant could be completed with difficulty on 12-1-1989 but it could not function upto the guaranteed parameters and various defects and deficiencies were detected in the performance of the plant. In February 1989 one Mr. Boll of M/s. Panndorf of West Germany came to the Project site and informed that the Dryer which had been manufactured by their firm, was of a different specification and lessor efficiency than that contracted by the accused and it was not possible for the plant to achieve the guaranteed performance parameters since the equipments supplied by the accused persons was not of contracted quality, specification and efficiency. The complainant then got the other equipment also examined and found that they were substandard and not according to specifications. By letter dated 15-2-1989 the accused persons were asked to remove and replace the deficient equipments. Several meetings were held, letters and telexes were sent but the accused did not pay any heed. The accused knew that the equipment and materials were not of the stipulated specifications and efficiency and were substandard. They knew that they were not supplying the equipment and materials as promised by them. During the course of erection, fixation mechanical tests etc. the accused persons were entrusted with various spare-parts belonging to the complainant's company on the specific understanding that the accused persons would return them or pay costs to the complainant company but they have refused to do so. The accused have unilaterally refused to work any further vide their letter dated 28-3-1989. The intention of the accused persons was dishonest and was designed to cause wrongful loss to the complainant company and wrongful gain to themselves. This dishonest intention was camouflaged by them and the complainant company was beguiled by their statements and assurances considering them to be gentlemen. Had the complainant known their dishonest intention, he would not have paid them large sums of money at all. The accused had cheated the complainant company and have committed criminal breach of trust in respect of equipments and materials worth crores of rupees and have committed offences punishable u/Ss. 420/406/ 120-B of the I.P.C.

(3.) In support of the complaint allegations the complainant examined himself u/S. 200. Cr. P.C. on 2-5-89 and examined Wing Commander Rajendra Kumar Chaudhury as his witness u/ S. 202, Cr. P.C. on 4-5-89. The Chief Judicial Magistrate Moradabad has by his reasoned order dated 29-5-89 summoned all the eleven accused and later on bailable warrants by way of process was issued by him. Felt aggrieved by the summoning order accused No. 1 and accused No. 11 have filed the aforesaid two Criminal Misc. Applications, praying that the complaint, the summoning order and the further proceedings in the said complaint case, be quashed.