JAYENDRA C SHAH Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has approached this Court challenging the order dated 19-4-2005 passed by the learned Chief Judicial Magistrate, Bolangir in G.R. Case No. 241 of 2003 whereby the contention of the learned defence counsel to discharge the accused/petitioner Jayendra C. Shah alias Jayendra Ch. Shah alias Jayendra Kumar Shah (hereinafter referred to as "Jayendra Shah") from this case was overruled. The learned Court below refused to discharge the petitioner and found prima facie case against him under Section 409/420 of the Indian Penal Code. The learned Court also ordered "charge be framed against the accused thereunder" and the case was accordingly posted to 25-4-2005 for consideration of charge/ framing the charge, directing the accused to remain present on that date personally. It would not be out of place to mention here that since the accused was absent on 25-4-2005, a petition for time was moved on his behalf by his counsel on the ground of illness. Considering the submissions made by the learned counsel for both the parties, petition for time was rejected by the learned Court below and N.B.W. was issued against the accused with notice to bailer. However, by order dated 7-6-2005 of this Court, further proceeding in G.R Case No. 241 of 2003 was stayed, which is in operation till date being extended from time to time.

(2.) The case of the petitioner, in short, is that G.R. Case has been instituted against the accused/petitioner in his capacity as proprietor of M/s. Kirti Electricals, Buxi-bazar, Cuttack. But, in fact, he is not the proprietor nor in any way connected with the M/s. Kirti Electricals. According to him, Kirti Kumar Shah alias Kirti Chandra Shah alias Kirti Kumar C. Shah (hereinafter referred to as "Kirti Shah") is the Proprietor of M/3. Klrti Electricals and the present accused is only a relative of Klrti Shah. Therefore, he is no way Involved with the alleged transaction, which is the subject-matter of the case, except that he was only the Power of Attorney holder of Kirti Electricals /its proprietor, for its day-to-day business as well as to deal with all financial matters and accordingly should be discharged. In support of his contention he had filed the Sales Tax clearance Certificate as well as the Income-tax return filed by the said Kirti Shah as Proprietor of M/s. Klrti Electricals. As such only M/s. Klrti Electricals or its proprietor is liable to be prosecuted/proceeded against for any transaction made on behalf of the Firm and not the petitioner, as because he is no way connected with the matter except that he was only a Power of Attorney holder, as stated above.

(3.) The case of the prosecution, as per the FIR story, is that the informant applied for a loan to Bolangir District Central Cooperative Bank Ltd., Bolangir Branch for the purpose of purchasing a Generator set. The Bank invited quotation towards the cost of generator. The accused/petitioner submitted quotation for supply of Generator set for Rs. 2,60,000/- on behalf of M/s. Kirti Electricals who was the distributing retailer of M/s. Vineet Electricals Industries (P) Ltd. Kolkota through its agent M/s. Sunderdas D. Hansraj of Cuttack. The loan was sanctioned by the Bolangir District Central Cooperative Bank Ltd. in favour of the Informant. The loan agreement was executed for RS. 2,60,000/-. One Mr. RajraJ Singhdeo stood as a guarantor. The Bank authority approved the quotation of M/s. Kirti Electricals submitted by the accused/ Jayendra Shah as its Proprietor, for supply of one generator set of 30 KVA capacity. The order for supply of generator was placed with Jayendra Shah (present accused) and Jayendra Shah accordingly placed orders for supply of generator to M/s, Vineet Electricals (P) Ltd. through its distributing retailer M/ s. Sundardas D. Hansraj. Finally, the generator set which was supplied, found defective and in broken condition. In that view of the matter the generator and all its accessories were taken back. The accused/petitioner Jayendra Shah received the entire quotation amount of Rs. 2,60,000/- by way of a demand draft from Bolangir District Central Co-operative Bank Ltd. towards the cost of the generator set along with its accessories; representing himself as the Proprietor of M/s. Klrti Electricals and he himself encashed the said draft through the Bank of Baroda, Cuttack. After encashing the Demand Draft amount, he paid only Rs. 1,51,200/- by a cheque to M/s. Vineet Electricals Industries (P) Ltd. Kolkota. The cheque was dishonoured on two occasions and bounced. The copy of the bill of M/s. Vineet Electricals Industries (P) Ltd. sent to the informant reveals that the cost of the generator is only Rs. 2,14,000/- against the bill of Rs. 2,60,000/-. Even though the entire amount of Rs. 2,60,000/- was already paid/received by the accused Jayendra Shah on behalf of Kirti Electricals a broken/ defective generator set was supplied. Immediately when the defective condition of the generator was brought to the notice, the same was taken back by the supplier and has not yet been replaced nor the amount of money of Rs. 2,60,000/- has yet been refunded to the complainant. Since the complainant Incurred a loan from the Bank to pay the entire amount to the accused/petitioner, he is paying interest on the loan amount.