HIRALAL PATNI Vs. CHOWTHMAL SHARMA AND ORS.

JUDGEMENT

(1.) THIS is an application under the provisions of Sections 439 and 561A of the Code of Criminal Procedure for quashing a complaint brought in the Court of Mr. N. C. Sarma, Magistrate, 1st Class, Gauhati, on 4th April 1950, by one Chowthmal Sharma, describing himself as the Manager of Messrs. Krishna Chandra Muralidhar a firm doing business at 71, Cross Street, Calcutta, against three persons (a) Sir Bhag Chand Soni, son of Tikam Chand, Ajmir, (b) Joykumar Patni, son of Hiralal, and (c) Hiralal Patni - -under Sections 417 and 420, Penal Code, and Sections 6 and 7, Merchandise Marks Act, (IV [4] of 1889). The complaint is in these terms:

(2.) THE learned Magistrate examined Chowthmall Sharma upon this complaint and the examination recorded by the Magistrate is:

(3.) THE petitioner's case is this; The contract which is the subject matter of the complaint, was made on 16th March 1949 by one Narsingdas Jain with the mill at Kishangarh, and was duly entered in the "Sowda" book of the mill and signed by Narsingdas Jain; on behalf of the mill it was signed by one Hiralal, a salesman of the mill; none of the three accused persons personally had anything to do with the making of the contract; the yarn was to be delivered ex -mill at the stipulated price; on 17th March 1949, Narsingdas Jain paid to the mill a sum of Rs. 26,000 and another sum of Rs. l,00,000 (one lac) on 14th March 1949 for which receipts ware given to Narsingdas; in due course Narsingdas gave instructions to the Mill to despatch 412 bales of yarn to Assam Stores at Gauhati instructions which were duly complied with by the mill in June 1949; the relevant Railway receipts and hundis were made over to the Central Bank of India Limited at Ajmer in the case of two consignments and to the Punjab National Bank Ltd., at Kishangarh in the case of the remaining two consignments; the amount of the bills paid by the banks was Rs. 2,01,412 -16 6 and the balance of Rs. 40,498 -2 -0 was adjusted against the deposit of Rs. 1,28 000 held by the Mill. On 24th August 1949 the Mill called upon Narsingdas Jain for instructions in the matter of the despath of the remaining 63 bales of yarn and 969 bales of cloth the latter of which are not the subject matter of the complaint; Narsingdas failed to give instructions in this behalf, and the Mill sent reminder to him on 7th September 1949 followed by a registered notice on 13th September 1919 intimating Naraingdas that if he did not take delivery of the goods, the mill would sell the goods by public auction on his account; Narsingdas made no reply and the Mill advertised the sale of the goods, which were in due course sold by auction on 25th September 1949 and 28th September 1949, the mill intimated Narsingdas that after giving him credit for a sum of Rs. 5,92,207 -10 -0 being the sale -proceeds of the goods realised at the auction, the balance still due from him was Rs. 82,422 -15 -3; on 25th October 1949, the mill instituted a suit against Narsingdas in the Court of the District Judge, Kishangarh, being suit No. 1552 of Sambat 2006, for the recovery of a sum of Rs. 83,422 -15 3 together with certain other amounts due from Naraingdas, amounting to a total sum of Rs. 1,92,516 -6 -3; on let December 1949, the District Judge issued a writ for attachment before judgment against Narsingdas : 4 months later on 4th April 1959 the present complaint was brought at Gauhati against the accused persons by one Chowthmall Sharma.