S W PALANITKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure (for short the Code) is so filed by the petitioners challenging the order dated 6.1.98 so passed in Complaint Case No. 1388/97 preferred by one Raghunath Prasad, figuring here as Opp. Party No. 2, in which the learned Court below, as detailed in the impugned order, a copy of which is filed, finding prime facie material has taken cognizance of the offence against the accused -petitioners under Sections 406 and 420/120B of the Indian Penal Code issuing summons against the petitioners under the provisions of Section 204 of the Code.

(2.) BY going through the complaint, petition, a copy of which is filed marked as Annexure -1, in a nut shell the allegations so put against the present petitioners are that the accused -persons are concerned with M/s. Gujarat Fertilizers and Chemicals Ltd., in short hereinafter to be referred as GSFC and Opp. Party No. 2 was so appointed as C and S (consignment Stockiest) as to get supply of their products i.e. urea in brand name 'Sardar' and to that effect an agreement was also so entered into between the parties on 21.2.95, a copy of which is also available for perusal but the accused -persons could not supply the target of the consignment which would have been the source of income for the complainant to gain commission out of the said allotment and supply of the product agreed upon to be despatched to the appointed C and F. i.e., the complainant. It was at one occasion some supply is said to have been made but after long persuasion when attempt was so made by the complainant failed to have another consignment and in that course, as per the complainant even the establishment of C&F; was so utilized by way of approaching the office of the complainant by the GSFC as a result of which the complainant claimed to have been cheated and there was criminal breach of trust even on the part of the concern GSFC and it was so done because of the accused -persons entering into criminal conspiracy, the conduct of the accused -persons thus as claimed led the complainant as to incur monetary loss to a great extent as detailed in the complaint -petition and hence, the prayer was as to take legal action against them, i.e., the accused -persons so detailed in the complaint -petition for their cheating the complainant.

(3.) BY taking all other grounds as good grounds for interference with the order under challenge, learned Counsel for the petitioners has also banked upon some of the reported cases. Firstly by referring to a reported case : AIR1992SC81 State of Haryana v. Bhajan Lal it is submitted that principles are laid down relating to the circumstances under with this Court while exercising its inherent powers so contained under Section 482 of the Code can interfere with and under Section 204 of the Code, summonses are being issued arbitrarily and in the present case no offence was so made out against the petitioners, the order under challenge is fit to be set aside. By referring to another reported case : 1976CriLJ1533 Nagawwa v. Veeranna Shivalingappa Konjlgi and Ors. it is submitted that the apex Court has held that if the order under challenge is capricious, arbitrary, suffering from legal defects and patently absurd that is liable to be set aside by exercising the powers so contained under Section 482 of the Code as not to allow the abuse of the process of the Court and as to avoid injustice. By referring to another reported case 1972 BUR 40 Hah Narain Sah v. Tirbeni Lal it is further pointed out that there is distinction between the breach of contract and cheating and in the instant case if the goods, taking the worst view, are not supplied in time and to the extent of quantity as expected or agreed upon, the act on the part of one of the partners does not constitute an offence of cheating because of the concept of deception is wanting and the learned Court below in such circumstance was excepted as to take legal notice of these situations instead arbitrarily passing erroneous order under Section 204 of the Code.