BALWINDER KUMAR Vs. R N HIGHWAYS (P) LTD

JUDGEMENT

(1.) Prayer in this petition is for quashing of criminal complaint No.11154 of 05.06.2008 titled as R.N. Highways (P) Ltd. Vs. Balwinder Singh and others (Annexure P-1) and the summoning order dated 24.08.2009 (Annexure P-2), vide which the petitioner has been summoned to face the trial under Section 406 of the Indian Penal Code (for short 'IPC').

(2.) Brief facts of the case are that the respondent-complainant (hereinafter referred as 'complainant') filed the aforesaid complaint in the year 2008 against petitioner Balwinder Kumar, Recovery Manager of HDFC Bank (for short 'Bank') along with J.P. Singh, Regional Manager, Rajesh Bhatia, Manager Legal Cell and one Tarun Likha, Manager of the Bank, Branch Sector-8, Chandigarh under Sections 390, 392, 403, 406, 420, 424, 426, 427 IPC with the allegations that the complainant is Director of R.N. Highways Pvt. Ltd. and is authorized to file the complaint by virtue of resolution dated 16.05.2008. The complainant-company had purchased a machine Tata Hitachi Ex-110 by availing the loan/finance from the Bank. Later on, due to financial problem of the complainant-company, installments of the loan amount could not be paid and on 30.01.2008, the petitioner along with other accused named in the complaint, who were employees of the Bank, had taken possession of the aforesaid machine in a reckless manner and the same was kept in the stock yard under their supervision. Thereafter, the complainant lodged the complaint with the police where conciliation efforts were made. The accused persons produced a letter dated 20.08.2006 given by Kamal Kant Puri, authorized representative of complainant, requesting the Bank to take possession of the machine. It is further stated that said Kamal Kant Puri had misappropriated the company's asset. Later on, a Memorandum of Settlement was effected between the Bank and the complainant and as per the settlement (Annexure P-3), the complainant paid an amount of Rs.13,75,000/- to the Bank on 14.03.2008 as full and final payment towards the loan amount and the Bank issued receipts dated 17.03.2008. The Bank further issued a release memo in respect of the machine, addressed to M/s Sanjeev Goel, Stock Yard, Panchkula on 20.03.2008. It is further stated on 21.03.2008, the complainant was allowed to inspect the machine along with an Engineer and found that some vital parts of the machine are missing and there are dents and damage due to careless mishandling. A list of damages and deficiencies was prepared and given to the petitioner, however, there was no response. Later on, the complainant approached Mr. J.P. Singh, Regional Manager of the Bank and gave a complaint dated 03.04.2008 and the complainant was assured that needful will be down within 72 hours. Thereafter, the complainant-company issued a notice dated 20.04.2008 but there was no response from the accused persons. It is further stated in the complaint that since the complainant is suffering loss of earning of Rs.7,000/- per day, which amounted to Rs.7.00 lacs, w.e.f. 30.01.2008 onwards, thus, it was prayed that the accused be summoned and punished according to law.

(3.) After the complainant led its preliminary evidence, in which the complainant appeared as CW1 and proved on record the settlement as Ex.C2, the trial Court vide impugned order dated 24.08.2009 (Annexure P-2) summoned the petitioner under Section 406 IPC only, however, no summoning order was passed against accused No.2 to 5, other office bearers of the Bank. The trial Court relied upon Clauses 1 & 3 of the settlement Ex.C2, where it was specifically mentioned that the Bank shall keep the machine in its trust and good condition and shall return the same to the complainant in the same good condition, in which it is being taken into trust.