MODI INDUSTRIES LTD. Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present revisional application has been preferred by the petitioner seeking an order under Sec. 482 of the Code of Criminal Procedure for quashing of proceedings being AC Case No. 2331 of 2012 pending before the Learned Judicial Magistrate, 4th Court,24-Parganas (South), at Alipore under Sec. 420/406/120 B of the Indian Penal Code and all orders including order dtd. 4/12/2012.

(2.) The brief fact of the case is that the opposite party no.2-complainant namely M/s Universal Paints Corporation, is a proprietorship company dealing with business of selling of paints and other allied materials. It filed a complaint before the Learned Additional Chief Judicial Magistrate, Alipore, with the contention that in the month of February 2011, the accused no.4 and 5 represented on behalf of Accused no. 1 namely Modi Industries Ltd (The petitioner herein) that they intend to appoint clearing and forwarding agent for marketing their products. In the month of March-April 2011, the opposite party no.2-complainant paid a security deposit of Rs.5.00 lakhs and also spent more than Rs.7.00 lakhs for fulfilling the conditions as asked for by the accused persons. In spite of fulfilling of the requirements as above the accused persons started dillydallying the execution of the distributorship agreement and after many persuasions a temporary agreement for distributorship was executed on 2/5/2011 with the terms and conditions mentioned therein. The accused persons asked the complainant to issue two blank cheques in the form of security deposit. The accused persons started the business with the complainant as per terms of distributorship agreement and in and around July, 2011 the accused persons started sending goods of inferior quality resulting in loss to the opposite party no.2-complainant to the tune of Rs.2,43,000.00. The opposite party no.2-complainant suffered recurring loss as well. On the basis of such averments the complaint case being no. AC 2331 of 2012 came into existence. The opposite party no.2-complainant was examined under Sec. 200 of the Code of Criminal Procedure and the summons was issued against the accused persons. Being aggrieved by and dissatisfied with the said proceedings the petitioner has preferred the present revisional application.

(3.) Mr. Sourav Chatterjee, learned advocate appearing on behalf of the petitioner firstly, submitted that as per the amended provision of Sec. 202 of the Code of Criminal Procedure it is mandatory that whenever the accused is residing at a place beyond the territorial jurisdiction of the originating court an enquiry under Sec. 202 of the Code of Criminal Procedure is to be directed. However, such provisions of law was not adhered to by the trial court while issuing process against the petitioner- accused no.1 who has its place of business at Modi Nagar, Ghaziabad, Uttar Pradesh which falls beyond the territorial jurisdictional area of the concerned Magistrate. In support of his contention he relied on a decision of Division bench of this Hon'ble Court passed in S.S Binu Vs. State of West Bengal and another and other batches of petitions reported in 2018 Cri LJ 3769. Secondly, he submitted that the allegations made out in the complaint squarely relates to supply of inferior quality of goods which is a general phenomenon in all business transactions of such a nature and cannot be labeled as a deceitful act or an act of conspiracy by the petitioner to breach the terms and conditions of the agreement for causing loss to the complainant-company. As the complaint is a fall out of an agreement by and between the parties hence, it is essentially a civil dispute and does not attract the provisions of Sec. 420/406/120B of the Indian Penal Code and in support of his contention he relied on the decision of the Hon'ble Apex Court passed in Dalip Kaur and others Vs. Jagnar Singh and another reported in (2009) 14 SCC 696. He further submitted that if this Court is of the opinion that Sec. 202 of the Code of Criminal Procedure has to be followed before issuance of summons then in that event the order of issuance of summons by the trial court be set aside with a direction for necessary compliance of the mandate of law envisaged in the said provision.