KAILASH CHANDRA AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) IN both these petitions under Section 482, Cr.P.C., the petitioners sought for quashing of the charge -sheet of Criminal Case No.349 of 2007 (State Vs. Kailash Chandra Agarwal) arising out Case Crime No.558 of 2006, under Section 406 IPC, Police Station Ramkot, District Sitapur pending in the court of learned Additional Civil Judge (JD) -IIIrd/ Judicial Magistrate, Sitapur including the order dated 16.08.2007 and 20.11.2007 passed by learned Additional Civil Judge (JD) -IIIrd/ Judicial Magistrate, Sitapur by which the petitioners have been summoned to face the trial.

(2.) BRIEF facts for deciding these petitions are that a first information report has been lodged by Sanjeev Pandey, who is the Cashier of S.K. Flour Mill, Sitapur (hereinafter referred to as 'the firm') on 15.10.2006 against Manish Goel, who is working with name of Sri Goel Converser and also doing business of trading in the name and style of M/s Khushi Enterprises with Kailash Chandra Agarwal. The informant's firm deals in business of Ata, Maida, Suzi etc. and sold the products through brokers. In this process, from 03.09.2006 to 05.10.2006, the firm S.K. Flour Mill sent the goods to different parties of Varanasi and Saidpur, District Ghazipur worth Rs.22,65,000/ - and odd through Manish Goel. When Manish Goel did not make the payment for a considerable long time, a request for demand has been made on which, he promised that as soon as, he received the payment from the parties, he will make the payment to the informant's firm. The informant suspected the activity of Manish Goel and contacted the parties to whom the goods were sent then he found that Manish Goel has already taken payment from the parties but he did not make the payment to the informant's firm. After knowing about the said fact, the informant tried to contact Manish Goel on mobile on 12.10.2006 but all mobile phones of Manish Goel were switched off and he disappeared from the seat (Gaddi) where he usually sits. On 14.10.2006, a phone call come from Kailash Chandra Agarwal on the mobile of Sri Vijay Agarwal his employer. Kailash Chandra Agarwal and Manish Goel talked with Sri Vijay Agrawal. Kailash Chandra Agarwal informed that Manish Goel come along with Rs.5,00,000/ -. He may come to Lucknow where he will make the payment and will talk on other issue. When the informant and his employer came to Lucknow at Pandeyganj, they did not found them. Thereafter they proceed to the Ready -made Garment Factory of Kailash Chandra Agarwal at Arya Nagar where they found Kailash Chandra Agarwal and Manish Goel but they refused to make payment. Kailash Chandra Agarwal assured that they may go to Varanasi where Manish Goel will make payment. Then one Ram Mohan Saxena went to take money from Manish Goel to Varanasi but Manish Goel did not found there. Thereafter, the informant came to know that Kailash Chandra Agarwal and Manish Goel misappropriate the money which they have taken from the dealers to whom the informant's firm sent the goods through Manish Goel.

(3.) THE aforesaid FIR has been lodged against Manish Goel and Kailash Chandra Agarwal under Sections 419, 420, 406 IPC at Case Crime No.558 of 2006 on 15.10.2006. After investigation charge -sheets were filed. One against Manish Goel and other against Kailash Chandra Agarwal. Cognizance against Manish Goel was taken on 20.11.2007 in Case No.349 of 2007 and cognizance against Kailash Chandra Agarwal was taken on 16.08.2007. Aggrieved by these orders and consequential proceedings, these petitions having Criminal Misc. Applications (U/s 482, Cr.P.C.) No.4119 of 2007 and 4120 of 2007 have been filed by Kailash Chandra Agarwal and Manish Goel respectively.