UPENDRA KUMAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) By means of this petition, under Section 482 of Code of Criminal Procedure (In short ''Cr.P.C.'), petitioner Upendra Kumar Sharma sought relief for quashing the proceedings of Criminal Case No.4230 of 2012 (Firm Shri Shyam Associates Vs. Upendra Kumar Sharma), under Sections 406, 419, 420 IPC, Police Station Kotwali Nagar, District Bahraich pending in the court of learned Chief Judicial Magistrate, Bahraich along with summoning order dated 22.02.2013 passed by learned Magistrate Bahraich.

(2.) Brief facts for deciding this petition are that the opposite party no.2 Firm Shri Shyam Associates through its partner Atul Kumar Goyal lodged a criminal complaint against the petitioner, who is doing his business in the name and style of Akshtam Marketing, Marketing Consultant, with the allegations that petitioner is the distributor of Goa Gutka and Pan Masala of Northern-Eastern zone of India. The petitioner appointed the opposite party no.2 as super stockiest in the month of July, 2010 for selling Goa Gutka and Pan Masala in the State of U.P. For doing the aforesaid business, the petitioner demanded security money from the opposite party no.2 to deposit the same with the Company of Goa Gutka and Pan Masala, Meenakshi Food Products Pvt.Ltd. On the aforesaid demand, the opposite party no.2 gave Rs.2,51,000/- through Cheque No.518676 of Bank of Baroda dated 30.07.2010 and Rs.2,50,000/- through Cheque No.033301 of HDFC Bank dated 30.07.2012 (probably 30.07.2010) to the petitioner as security money. Thereafter, the petitioner again demanded security money to deposit the same with the Company and the opposite party no.2 gave him Rs.25,00,000/- through Cheque No.702576 of Bank of Maharashtra and Rs.20,00,000/- through Cheque No.702577 of Bank of Maharashtra on 21.08.2010. Due to non supply and obstruction in business, the opposite party no.2 cancelled the agreement in the Month of January, 2011 and demanded the security money back. The petitioner refunded Rs.2,51,000/- in the bank account of Firm Tekari Wala Farma and Rs.2,50,000/- in the bank account of Agrawal Medical Store through RTGS to the opposite party no.2. On demand of rest of Rs.45 lac by the opposite party no.2, the petitioner promised him to give the same. After lapse of some time, when the security money has not been refunded by the petitioner, the opposite party no.2 sent demand notice dated 24.07.2012 but after expiry of the period of demand notice, the remaining amount has not been paid by the petitioner. Thereafter, the opposite party no.2 filed a criminal complaint against the petitioner. The learned Magistrate after recording the statements under Sections 200 and 202, Cr.P.C. summoned the petitioner to face trial vide impugned order dated 22.02.2013.

(3.) It has been submitted by learned counsel for the petitioner that this is a pure commercial transaction in connection with trade. The security amount has actually been deposited with the Company but due to orders of the Apex Court for closing the business of Gutka, the Company could not refund the security amount deposited by opposite party no.2