CHANDRA MOHAN AGRAWAL Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Sushil Shukla, learned counsel for the applicants, Sri A.M. Zaidi, learned counsel appearing for the opposite party no. 2 as well as the learned A.G.A. for the State and have gone through the record.

(2.) THE instant petition has been filed invoking the inherent power of this court under Section 482 Cr.P.C. to quash the criminal proceedings of Criminal Complaint Case No. 2466 of 2010 (Turun Kumar Mitra Vs. Chandra Mohan Agarwal and others) pending in the court of Additional Chief Judicial Magistrate -II, Gautam Budh Nagar whereby the proceeding has been initiated against the applicants by summoning them for offences punishable under Sections 406, 504 and 506 I.P.C., police station Sector 58, Noida, district Gautam Budh Nagar vide order dated 13.12.2010.

(3.) THE prosecution case in short conspectus is that the opposite party no. 2 Turun Kumar Mitra moved an application under Section 156 (3) Cr.P.C. on 5.2.2010 against the applicants, which was treated by the Additional Chief Judicial Magistrate -II, Gautam Budh Nagar by order dated 17.4.2010 as Complaint Case No. 2466 of 2010 and on the basis of the statement recorded under Sections 200 Cr.P.C. of the complainant and on the basis of documentary proof in support thereof found that prima facie offence under Sections 406, 504 ad 506 I.P.C. has been made out against the applicants hence took the cognizance and passed the summoning order dated 13.12.2010. The opposite party no. 2 submitted in his complaint that he runs his office of Consultancy "Liaisening Work" of export import policy under the name and style as "Shiv Shakti Consultancy Services" situated at 8 -A/506, D.D.A. Flat, Myor Kunj, Trilokpuri, Delhi -110091 and the applicant No. is proprietor of M/s. Aloka Exports at 324, Badla Uddyog Bhawan, New Gam Cross Road, Mumbai -40031 who deals with the business of export recognised by the government. The applicant no. 2 is the Regional Manager of its office situated in Noida. The applicants had engaged the services of opposite party no. 2 for "Duty Drawback" from custom department at ICD Dadri and IGI Airport, New Delhi since 14.5.2008 in respect of which necessary authority letter was sent to the custom department authorizing the opposite party no. 2 in this regard for which the opposite party no. 2 shall be paid the commission of Rs. 1.5%. The dispute was with regard to the claim of outstanding payment of commission for the services rendered by the opposite party no. 2 in respect of payment of duty drawback from the firm, which was not paid by the applicants to which the former was legally entitled to. It was mentioned in the complaint that when the complainant claimed from the said firm due amount of Rs. 2,18,711/ - at the rate of 1.5% commission, which was earned by him towards his outstanding commission for securing payment of duty drawback from custom department, the applicants did not pay any heed and turned down his request blatantly and was threatened by the applicants with the intention to intimidate and harass him, hence he was left with no alternative but to file an application under Section 156 (3) Cr.P.C. to direct the concerned police station to lodge the first information report against the applicants. The learned Magistrate treated the same as complaint by order dated 17.4.2010 after going through the relevant papers, report of the police station and the application moved by the complainant, the court proceeded to record the statement of the opposite party no. 2 complainant under Section 200 Cr.P.C. and on the basis thereof the court below found that prima facie offence is made out against Chandra Mohan Agarwal (the applicant no.1) and Shashank Jain (the applicant no.2) under Sections 406, 504 and 506 I.P.C., hence took the cognizance directing them to face trial by order dated 13.12.2010.