ATAL STORES Vs. JAIN ENTERPRISE

JUDGEMENT

(1.) These revision petitions under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, are directed against the orders passed by the learned Additional Chief Judicial Magistrate, Dibrugarh in complaint Case No. 136C/1999 framing charge under Sections 409/34 IPC against the petitioners who are the accused in the said complaint case. In both the revision petitions the matter in issue being the same, as agreed to by the learned counsel for the parties, are taken up for hearing and disposal together.

(2.) The respondent in the revision petitions filed a complaint case in the Court of the learned Chief Judicial Magistrate against the present petitioners and another namely, Smt. Santi Debi Atal, (who during the pendency of the revision petitions died) and who are the partners of M/s Atal Stores (accused No. 1), a partnership firm, alleging commission of offence under Section 409/34 IPC, stating inter alia that the accused No. 4 (Shri Gobardhan Prasad Atal) who is one of the partners of the partnership firm (the accused No. 1) and of which the accused Nos. 2 and 3 are also the partners, on 20.11.1993 agreed and assured the complainant for dispatch of one rack O.P.C. Santa cement consisting of 2000 MT for a sum of Rs. 40,00,000/-, which was paid by the complainant in the name of the accused No. 1 by bank drafts all dated 22.11.1993 drawn on Punjab National Bank, Dibrugarh and Allahabad Bank, Dibrugarh payable at Guwahati, but the accused who were required to complete the delivery of cement within 45 days of receipt of the money failed to dispatch the cement and hence on 11.05.1994 the accused No. 1 through the accused No. 4 sent a letter to the complainant showing a deposit of Rs. 38,29,786.80 on account of the supply of cement and regretted for delay in dispatch of the cement. Thereafter the accused No. 4 on 30.07.1994 informed the complainant about a dispute between the accused, manufacturer and the bank and assured that within a month the problem would be sorted out and requested the complainant to bear till then and also informed the complainant on 31.10.1994 that they would pay interest @ 10% per annum on the amount kept in deposit till the supply of cement are effected, otherwise the amount would be returned to the complainant. According to the complainant as the accused failed to supply the cement, they issued 4 (four) cheques covering an amount of Rs. 37,09,371.22, which amount was found to be payable after adjustment of accounts, drawn on Vijaya Bank, Fancy Bazar, Guwahati, without putting any dates thereon and forwarded the same along with the letter dated 29.01.1997 and requested the complainant to put the dates afterwards as per their advice as they would arrange the fund very soon. According to the complainant though they vide letter dated 01.08.1997 and 18.05.1998 requested the accused persons to inform the date when the said cheques are to be presented in the bank for payment, the accused persons with malafide intention did not give any reply and thereafter vide communication dated 21.04.1999 cancelled the aforesaid cheques and asked the complainant to return the same which the complainant has protested vide letter dated 24.04.1999.

(3.) The learned Chief Judicial Magistrate vide order dated 10.06.1999, after recording the statement of the complainant and upon perusal of the documents filed, took the cognizance of the case under Sections 409/34 IPC against all the accused persons and issued bailable warrant of arrest. The accused persons thereafter filed two petitions under Section 482 of the Code of Criminal Procedure , registered and numbered as Criminal Revision Petition No. 348 of 1999 and Criminal Revision Petition No. 391 of 1999, for quashing the proceeding in the aforesaid complaint case. A single Bench of this court vide Judgment and Order dated 04.03.2003 dismissed both the revision petitions by refusing to quash the proceeding. The accused persons thereafter appeared before the learned Chief Judicial