S SUKMINI ACHI Vs. BANKIMCHANDRA K LODAYA

JUDGEMENT

(1.) This application under Article 227 of the Constitution is directed against the process issued by the Metropolitan Magistrate, Second Court, Mazgaon, Bombay, in Criminal Case No. 106/S/1977. Petitioners pray for quashing of the criminal proceedings initiated one the complaint of respondent No. 1 in March, 1976.

(2.) The complainant lodged this complaint for offences under section 407 read with section 120-B or in the alternative section 407 read with section 114 of the Indian Penal Code. Complainant is the Manager of the firm Govindji Jevat & Co. Accused No. 1 is the Manager of M/s. Deluxe Roadlines. This firm carries on transport business. Accused Nos. 2 & 3 are the Directors of M/s. Rukminin Mills Ltd., situated at Silaiman (Madurai District of Tamil Nadu). Accused No. 4 is the Office Assistant of the said Mills whereas accused No. 5 is the General Manager. Complaints case is that Rukmini Mills Ltd. agreed to purchase 50 bales of MCU-5 New Cotton at the rate of Rs. 4,700/- per candy of 784 lbs. F.O.R. Silaiman. 90% of the price was to be paid by the purchasers on arrival of the goods at the destination. The 90% amount was to be paid in the Bank by honouring the hundi drawn by the sellers and the balance was to be paid within 80 days after passing weighment. The goods, according to the complainant, were despatched from Guntur in terms of the complainants letter dated 8-1-1976. The letter contemplated delivery of the consignment to or to the order of the consignee bank whose name was also mentioned in the lorry receipt issued by the transporters Delux Roadlines.

(3.) The goods were despatched on 9-1-1976 from Guntur under the lorry receipt bearing No. 4220 dated 9-1-1976. The said lorry receipt together with the hundi for Rs. 1,00,000/- drawn on Rukmini Mills Ltd. and insurance cover note and proform a invoice was sent to the India Bank under letter dated 10-1-1976. The hundi was however, not honoured, nor the goods were returned as was contemplated in terms of the instructions by the complainant to the accused No. 1. Para 11 of the complaint itself indicates that the complainant on inquiries learnt that accused No. 1 and accused Nos. 2 to 5 hatched a conspiracy and pursuant to the said conspiracy accused No. 1 issued another transport receipt bearing No. 27077 dated 9-1-1976 showing the complainants company as a consignor and self Silaiman as a consignee and the lorry driver was directed to deliver the goods to accused Nos. 2 to 5 without consignee copy. The lorry driver accordingly delivered the goods to accused Nos. 2 to 5 without consignee copy to accused Nos. 2 to 5. It is then averred that accused Nos. 2 to 5 admitted the receipt of the goods without making any payment and without obtaining an order, endorsement or letter of authority from the consignee Bank. They further requested Shri Rohit Khona of the complainant for weighment and passing of the goods and told him that they were sorry for such conduct and will pay the amount immediately. It is then alleged that accused Nos. 2 to 5 assured the complainant that they will not consume or convert the goods to their own use without paying the price. In view of these assurance, a fresh invoice bearing No. 1 dated 29th/30th January, 1976 for a sum of Rs. 1,08,443.08 was issued to the said Mills. It is then alleged that inspite of this assurance the accused dishonestly converted the said goods to their own use in violation of the said contract without paying the price of the goods.