ARTI BHANDARI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) BY this revisional application dated 22-1-2007 under Section 482, Cr. P. C. prayer has been made for quashing of a proceeding being CGR No. 936 of 2005 arising out of Ekbalpore PS case No. 71 dated 11-4-2005 under Section 420 of the IPC culminating in submission of charge-sheet under the aforesaid section of the law. The OP No. 2 who is the managing partner of a concern called "nelufer's COLLECTIONS" filed a petition before learned CJM, Alipore, South 24 Pgs, against the present petitioner alleging that the accused/petitioner who is a nonresident Indian running business under the name and style of "artee Collection Inc", having office at a place in Hudson, USA came to India and proposed to the complainant to enter into partnership with the accused to which the complainant agreed and since then the Export Credit Guarantee Corporation withdrew their commercial risk coverage of the complainant's export to "artee collection Inc" and the complainant on purchase order placed by the accused persons continued to export to the accused persons high valued embroderied and printed furnishing fabrics on terms of payment on documents against the acceptance for payment within 90 days from the date of Airway bill through Hudson Savings Bank, USA and through the complainant's banker Oriental Bank of Commercial Overseas Branch, kolkata allegedly the accused to gain more confidence of the complainant and fulfil a dishonest and fraudulent intention to cheat the accused/petitioner had been sending her purchase order and upon receipt of the shipment had been remitting payments within 90 days till the month of August 2004. Since september 2004 the accused persons started cheating the complainant by delaying the payments in spite of receipt of the goods as per the purchase order given by the accused persons and further induced the complainant to deliver the goods against purchase order sent by her. On good faith the complainant exported 14 shipments since September 2004 to the accused persons, the total value of which was $ 51274. 24. After receiving their aforesaid goods exported by the complainant to the accused persons and for non-payment of the dues to the accused persons approximately in the sum of Rs. 20 lakh in Indian currency the complainant intimated the accused persons on several occasions to pay the dues but the accused paid no heed and threatened the complainant with dire consequences. The complainant came to the accused when the accused came to Kolkata on 16-3-2005 and requested her to make payment of the money but the accused denied and told that as she is an NRI residing in the USA the complainant would not be able to do anything against her.

(2.) THE grounds of revision are that the allegations in the petition of complaint are absolutely concocted, fabricated and with mala fide intention of depriving the legitimate claim of the petitioner of the profits of the partnership firm, that the learned Judicial Magistrate without application of mind took cognizance of the offence upon receipt of the charge-sheet, that there is no iota of material in the petition of complaint against the petitioner that can constitute any cause of action or any cognizable offence, there was no question of false inducement by the petitioner with a motive of deceiving the OP No. 2, that the ingredients of the offence of Section 415 of IPC are basent in the petition of complaint because as a partner of the firm, the petitioner has invested huge amount of money in the partnership firm after being inducted as a partner of the complainant's partnership firm and thus the question of deceiving the complainant with a false statement could not arise, that alleged act of the petitioner may give rise to a civil dispute but the purported criminal proceeding initiated by the OP No. 2 with a mala fide intention is a sheer abuse of the process of the Court and accordingly the proceedings be quashed.

(3.) ON 14-2-2001 a deed of agreement was entered into by the OP No. 2, the managing partner of the "nelufer's COLLECTIONS" and another with the present petitioner hereby the present petitioner was inducted as a partner. The petitioner Instituted a civil suit being TS 60/05 with the learned civil Judge (Sn. Div.) 5th Court, Allpore under Title Suit No. 60/05 against the de facto complainant and one Seema Hasnain who are the partners of the firm praying for winding up of the affairs of the dissolved partnership firm and for direction upon the complainant and another partner to pay petitioner her share of profits and for perpetual injunction.