KAMAL H JAVERI Vs. CHANDULAL GULABCHAND KOTHARI

JUDGEMENT

(1.) This criminal application under S.482, Cr.P.C. 1973, is directed against the order of issuance of process for offence punishable under S.500, I.P.C., against the petitioners accused passed by the Metropolitan Magistrate, 28th Court, Esplanade, Bombay.

(2.) The petitioners are the original accused who are hereinafter referred to as 'the accused' in Criminal Case No.245/S of 1983 filed by respondent 1 being the private complaint in the Court of Metropolitan Magistrate, 28th Court, Esplanade, Bombay. This complaint was filed on June 7, 1983. In order to appreciate the allegations contained in this complaint, it would be necessary to refer to two other complaints filed by the accused preceding this private complaint which according to the complainant formed the basis for his criminal action under Ss.500/114/34, I.P.C. Both the accused are the employees of Godrej Company. It is also not in dispute that one Saindas Bhandari is the proprietor of the firm known as Pragati Enterprises. Roshanlal Wadhera is the nephew of Saindas Bhandari and was connected with the business of Pragati Enterprises. Pragati Enterprises carry on the business in edible oils which they used to purchase in bulk quantity from Godrej Soaps Ltd. The accused No.1 filed criminal case No.79/S of 1979 in the capacity of Sales Manager (Edible Oils) of Godrej Soaps Ltd. against Saindas Bhandari, Roshanlal Wadhera and Chandu Kothari, the present complainant. That case was filed for the offence punishable under S.34 and/or under S.120-B read with S.420 I.P.C. for cheating the Godrej Soaps Ltd., for Rs. 2,26,300/-. This complaint is hereinafter referred to as the 'first complaint'. It is alleged in this first complaint that Saindas Bhandari is the proprietor of the firm known as Pragati Enterprises. Roshanlal Wadhera and Chandulal Kothari used to assist Saindas in the business of the firm of Pragati Enterprises.

(3.) It is then stated in this first complaint that during the period between December 1977 and July 1978, one or other of the accused from time to time placed orders worth Rs. 14 lacs and the same were executed by the Company on cash against delivery basis. On July 12, 1978, the Company had to effect delivery of 550 tins of oil but at that time it was noticed that the blank cheques signed by Saindas had been exhausted and, therefore, the complainant told the accused No.1 on the telephone on July 11, 1978 to send him the cheques duly signed to enable the Company to effect the delivery against payment. Accused 1 informed the complainant that he had already posted few signed cheques and the delivery should not be held up. Accused 2 also repeated the same request and told him that the cheques were already sent by post and the same will be received by July 15, Saturday or latest by July 17, 1978 Monday. Relying on these representations and assurances given by accused 1, the Company delivered 2100 tins of edible oil worth Rs. 2,26,300/-. No cheques signed by accused 1 were received as represented and promised and, therefore, the complainant contacted accused 1 and 2 wherein they accepted for having made a false statement and further alleged that since they could not recover the outstanding from the customers they were unable to pay the price. The company therefore suspended delivery of further edible oil to accused 1 and 2. It was then alleged in the first complaint that on or about August 31, 1978 accused 1 and 2 appealed to the Company to effect delivery on C.O.D. basis and promised to clear all the outstandings by November 1978. The company however taking a charitable view supplied the edible oil tins to accused 1 and 2 but, however, accused 1 and 2 failed and neglected to pay the price. It was then alleged in the complaint that accused 1 and 2 have defrauded the company to the tune of Rs. 2,89,277/-. The Company accepted that the accused have made part payment of Rs. 56,000/- in two instalments in September and October 1978. After assessing the financial position of accused 1 and 2 it was found that the representations made by both the accused were false. In fact the goods received by accused 1 and 2 between July and October 1978, part of it was sold to third party at a lower rate and received the sale proceeds from their buyers (Sic). In para 10, it was alleged that the accused had no intention to pay for the goods supplied by the Company and, therefore, they falsely represented that the cheques had been posted. Para 11 is connected with the present complainant Chandulal Kothari who was accused 3 in the first complaint and it reads as under:-