H S TIWARI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application is directed against an order dated 26-12-1994 passed by the ld. Judicial Magistrate, IXth Court, Alipore on C.G.R. Case No. 2939 of 1988 under Section 408/409 of the Indian Penal Code thereby rejecting the petitioners' application for discharge from the case.

(2.) On the basis of a complaint lodged by one R. S. Agarwal, Manager, Finance and Accounts, M/s. Jenson and Nicholson (India) Ltd. having its head office at 225, A.J.C. Bose Road, Calcutta, a case was registered with Ballygunge police station being Ballygunge P.S. case No. 105 dated 6-7-1990 under Sections 467/468/471/408/409 of the Indian Penal Code. In the first informtion report it was alleged that the present petitioner No. 2 was the proprietor of M/s. Namrata Paints, a dealer of paints and commission agent having his office at Rajkot, Gujarat and the petitioner No. 1 is the son of the petitioner No. 2 and also a Sales Representative of the Company in Ahmedabad section. It was alleged that said M/s. Namrata Paints used to collect orders and the goods were supplied from the complainant Company at Calcutta as per their orders. It ws alleged that the accused persons entered into a criminal conspiracy and placed orders for supply of goods in the names of different parties and also took delivery of the said goods. Later on it was detected by the complainant that some of the parties in whose favour the orders were supplied were not in existence at all. The goods were taken delivery of by the accused on their behalf and the sales tax payable by them was also misappropriated by the accused. When the complainant approached the parties, in whose favour orders were supplied, for payment of the sales tax on the value of the goods, it was ascertained that the orders were not placed by them and they were not responsible for payment of any sales tax. It was further alleged that the accused persons by placing orders in favour of the said parties had deposited the value of the goods, but misappropriated the sales tax dues, which were realised by them. It was also stated in the petition of complaint that all particulars regarding the sale of goods throughout the country are required to be accounted for in the Head Office of complainant's company at Calcutta.

(3.) On completion of investigation chargesheet was submitted by the police under Section 408/409, I.P.C. On the basis of charge-sheet the learned Magistrate took cognizance of the offence. After the copies of police papers and documents were supplied to the accused petitioners they filed an application before the learned Magistrate praying for discharge from the case. Such application was rejected by the learned Magistrate by the impugned order and hence this revision.