BASDEO SHARMA Vs. DHANRAJ GUPTA

JUDGEMENT

(1.) THIS Rule is directed against a proceeding being Case no. C/418 of 1981 under sections 403, 406 and 477a read with 109 of the Indian Penal code now pending in the court of Shri S. P. Das Ghose, Chief Metropolitan Magistrate; Calcutta. The petitioners (accused)have prayed for quashing of the proceeding on the ground that the same is not maintainable in law or on fact. A petition of complaint was filed by one Dhanraj Gupta opposite party before the Chief Metropolitan Magistrate, Calcutta under section 406 and other sections read with section 114 of the Indian Penal Code against the petitioners on 19. 2. 81 on the following allegations.

(2.) THE opposite party complainant and the petitioner No. 1 accused entered into a partnership business ' by a registered deed on November 15, 1972 and they were carrying on a business at the registered office of the firm at 21-A, Canning Street, Calcutta as M/s. Hanuman Steel Wires under thee terms and conditions as set out in the partnership deed. The said business consisted in supply of steel wires to different customers, until the year 1977 when the opposite, party fell seriously ill and the business was left in the charge of petitioners nos. 1 and 2, The complainant was informed in July 1977 while he was bed-ridden that the books of account had been removed from the registered office at 21-A, Canning street, Calcutta to 3/a, Shakespeare sarani, Calcutta which is the office of M/s. Agar walla Hardware Works (P) Ltd. where the petitioner No. 1' worked for gain as the manager. On his recovery from illness, the opposite party paid occasional visits to the place of business and noticed irregularities in the accounts and reports were made to him by the Accountant that he was not allowed to make day to day entries and further that the goods were being received without proper challans. In september, 1977 upon his visit to the place of business the complainant opposite party came to know of various irregularities and illegalities committed by the petitioner and in order to save himself from total financial ruin he entered into a deed of dissolution of partnership sometimes in December, 1977. Upon the execution of the deed of dissolution of partnership firm from the accounts given by the partner, namely, the petitioner No. 1, many acts of miss-appropriation of money and also of clandestine sale of the factory products were disclosed which could not be detected until that date. It is alleged that a cheque dated 30. 8. 77 issued in favour of M/s. Lalbaba industrial corporation at 28, Strand Road, Calcutta for Rs10,000/- was cashed from the Bank account of the firm of New Bank of India and the proceeds were dishonestly misappropriated by the petitioner No. 1. This came to his knowledge on 30. 12. 80 as the drawee of the cheque informed the opposite party complainant that no such cheque was received by the firm nor credited to its account at any time. Similar mis-appropriation of the proceeds of another cheque dated 30. 8. 77 on the New Bank of India drawn in fovour of M/s. Azad Hind Iron and Engineering works was reported to him on 27- 11. 80. Many other irregularities, namely, that although challans were issued for 210 bags of steel wire valued. at Rs. 36,000/- in the name of M/s. Agarwal hardware Works (P) Ltd. in respect of which firm the petitioner No. 1 is the Manager, no such goods were delivered to nor received by the said firm. The only conclusion is that the two petitioners had added and abet to each other to dishonestly misappropriate the precedes of such clandestine deals. These alleged fictitious deals were corroborated by the driver of the lorry who stated that the goods were never delivered to the ostensible customers.

(3.) ON receiving the petition of complaint: on such facts, the learned Chief Metropolitan Magistrate after examining the complainant and one of his witnesses issued process against the petitioners (accused ). The learned Magistrate was also pleased to direct issue of search warrant for cash book and ledger of M/s. Human Steel Wires far the year 1977 which was kept in the custody of the petitioner No. 1.