SRI SUNIL SAWANT Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The respondent No. 2 International Combustion (Indian) Ltd used to manufacture "IC-Bauser Products". The petitioners were the officers of Asia Pacific Brands India Ltd. They approached International Combustion expressing there eagerness to have a distributorship of IC-Bauser Products belonged to the said company. On November 14, 2006, the parties entered into a distributorship agreement wherein Asia Pacific would sell the products of International Combustion and would get commission @ forty five per cent as and by way of discount. The said agreement for distributorship also recorded other terms and conditions to be followed by the parties.

(2.) On August 27, 2007 International found a sum of Rs. 2,89,237/- being due and payable by Asia Pacific on account of sale of their goods after giving available credit as also debit note for some defectives materials. On a query the learned Counsel appearing for the International informed me that a sum of Rs. 13,38,477/- covering eight invoices was already paid by Asia Pacific in 2007. Under the said agreement, the dispute, if any, between the parties was to be resolved through arbitration within the local limits of Mumbai and the Courts having jurisdiction over the Municipal Limits of City of Mumbai would be the appropriate forum for resolution of any such dispute. In the above premises International filed a complaint before the learned Metropolitan Calcutta under section 403/420 of Indian penal Code alleging breach of contract by Asia Pacific. It was alleged that they failed and ne- glected to keep their promise by making payment of the balance sum and instead they sent truckload of junk said to be rejected materials squaring off the account. The learned Magistrate took cognizance, which prompted Asia Pacific to approach this Court for quashing of the same.

(3.) Mr. Swapan Kumar Mallick learned Counsel appearing for the Asia Pacific contended that from the nature of the dispute as would appear from the pleading it was clear that the alleged offence was civil in nature and could not be tried by the learned Magistrate under Section 403 or 420 of the Indian Penal Code. Mr. Mallick further contended that the agreement would denote that the parties agreed to a forum to have their dispute resolved through arbitration. In any event, they agreed to submit to the jurisdiction of the Court within Municipal limits of Mumbai. No offence being committed at Calcutta, the learned Magistrate was not competent to entertain the complaint. Mr. Mallick further contended that International in their complaint had admitted earlier payments. Hence pre-requisite of Section 420 being absent complaint was not maintainable. Mr. Mallick also relied on the Memo dated December 13, 2008 which would show that a sum of Rs. 4094.00/- was paid by Asia Pacific in full and final settlement.