KRISHNAKUMAR G KALRA Vs. SR INSPECTOR OF POLICE

JUDGEMENT

(1.) This Revision Petition is directed against the judgment and order dated 6th August, 1998 passed by the learned Addl. Sessions judge, Greater Mumbai allowing the Criminal Revision filed by Pramod Gupta (respondent No. 3 herein) and thereby quashing and setting aside the order dated 18th December 1996 passed by the Addl. Chief Metropolitan Magistrate, 2nd court, Mazgaon, Mumbai discharging the petitioners.

(2.) The facts necessary for consideration of the Revision Petition in brief are as follows :-Petitioner No. 1 and 2 are father and son. The petitioner No. 1 is carrying on business as a broker in steel items, in Mumbai for more than 40 years and the petitioner No. 2 helps him therein. Sometime in the first week of December 1989, the petitioners approached one Mr. Kasturilal Gupta (father of respondent No. 3) with a business proposal to sell steel stated to have been imported by M/s. Alpine industries. They offered 100 tonnes of imported cold rolled steel sheets at the rate of Rs. 17 per kg. They told him that out of the total price of Rs. 17 lakhs Rs. 7 lakhs be paid as advance and balance Rs. 10 lakhs be paid at the time of delivery. Believing their representations Kasturilal gave them a demand draft of Rs. 7 lakhs drawn in favour of Alpine Industries payable at Delhi. As nothing happened for 2-3 three weeks, Kasturilal approached the petitioners who gave some excuses and requested him to wait for some time. The excuses continued for a long time and after about six months, petitioners told him that the goods were sold to someone else and they would return the amount of Rs. 7 lakhs to him. The money was never returned. According to Kasturilal, the petitioners in collusion of Alpine Industries wrongfully induced them to pay by demand draft rs. 7 lakhs without any intention to honour the deal. They never had any intention to deliver the steel. They had therefore caused wrongful gain for themselves and wrongful loss to Kasturilal. Kasturilal, accordingly wrote a letter to the Joint Commissioner of Police on 16th March, 1992 intimating about the cheating caused by the petitioners and Alpine Industries. Thereupon, the police recorded the statement of Kasturilal and sent their team to Delhi for investigation and recorded the statements of the persons connected with Alpine Industries. After investigation, police were of the opinion that the partners of Alpine industries and the petitioners had cheated Kasturilal and had committed the offence of cheating punishable under section 420 r/w section 34 and in the alternative under section 120 B of the Indian Penal Code (for short 'the IPC') -Accordingly, a charge-sheet was filed on 5th April, 1996 against the petitioners as well as the two partners of Alpine Industries in the Court of Addl. Chief metropolitan Magistrate, 2nd Court, Mazgaon, Mumbai. The Magistrate took cognizance and issued summonses to the accused. The petitioners were served but the summonses of the other two accused viz. partners of Alpine Industries were returned unserved. On receipt of the summonses, the petitioners appeared before the Magistrate and made an application for discharge. By an order dated 18th December, 1996, the learned Addl. Chief Metropolitan Magistrate passed an order discharging the petitioners from the charges levelled against them. By that time, the original complainant Mr. Kasturilal had died. His son Pramod who inherited the estate to Kasturilal, filed a revision petition bearing No. 93 of 1997 before the Sessions Court challenging the order of the Addl. Chief Metropolitan magistrate discharging the petitioners. By an order dated 6th August, 1998, the learned Sessions Judge allowed the revision petition filed by Pramod and quashed and set aside the order of the Addl. Chief Metropolitan Magistrate discharging the petitioners. He further directed the petitioners to appear before the Magistrate on 7th September, 1998 to enable the Magistrate to proceed in accordance with law. That order is impugned in this Revision Petition.

(3.) Mr. Gupte appearing on behalf of the petitioners submitted that the petitioners only acted as brokers in the transaction. The goods belonged to Alpine industries of which accused Nos. 3 and 4 were the partners. The demand draft was drawn by Kasturilal in favour of Alpine Industries and was merely delivered to the petitioners for delivery to Alpine Industries. The petitioners' had only delivered the demand draft to Alpine Industries who encashed it. The money was received by Alpine Industries and not by the petitioners. They had no knowledge of any fraudulent intention on the part of Alpine Industries or its partners not to deliver the goods to Kasturilal. The cheating, if any, was caused by Alpine industries and not by the petitioners. There was no material on record to connect the petitioners with the alleged crime of cheating. In the absence of any material on record, the learned Sessions Judge erred in setting aside the order of the magistrate discharging the petitioners.