RAGHUNATH PRASAD SRIVASTAVA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 30.5.2003 passed by the Judicial Magistrate, Motihari in Enquiry Case No. 218/2002, arising out of complaint Case No. 1670 (C)/2002 filed by the opposite party No. 2 herein. By the said, order processes has been issued against the petitioners and another accused Panna Lal Gupta to face prosecution under Sections 471 and 418 of the Indian Penal Code in the complaint case, as aforesaid, filed by the opposite party No. 2.

(2.) THE contention of the learned Counsel for the petitioners is that the present prosecution is an abuse of the process of law. The complaint does not disclose any offence under Sections 471 and 418. of the Penal Code against the petitioner herein. Lastly the present prosecution has been filed in the facts of the case, with the design to preempt the filing of prosecution against the opposite party No. 2 under Sections 406, 408, 120 -B of the Indian Penal Code read with Section 138 of the Negotiable instruments Act.

(3.) THE facts giving rise to the present prosecution as culled out from the complaint cases filed by the opposite party No. 2 and the Bihar Co -operative Sugar Factories Federation Ltd. need to be stated for better appreciation. The petitioners are officers and employee of the Bihar Co -operative Sugar Factories Federation Limited, hereinafter referred to as 'the Federation ' for brevity. The aim and object of the Federation is to carry on business of sugar mill, purchase, manufacture, produce, refine, promote import -export, sell and generally to deal in sugar etc. The Federation is a registered body under the Bihar and Orissa cooperative Societies Act. The Federation in course of business enters into agreement with the interested parties who hold whole - sale licence for trading of free sale Sugar. Under the agreement the Federation gives bank drafts/cheques of the required amount to the concerned party for lifting of Sugar from the nominated Factories. The contractual agency lifts the Sugar from the concerned Factory and the money so paid to it by the Federation earlier for such lifting is then required to be refunded by the contractual agency to the Federation along with the amount of profit thereon after deduction of the commission agreed to be payable to the contracting agency under the agreement. The principal amount with profit was thus required to be returned by the contracting agency to the Federation within 28 days of the supply of such drafts/cheques by Federation to the contracting agency. In case of delay the contracting agency was required to pay penalty to the Federation.5 One Panna Lal Gupta (also impleaded as accused No. 4 in the Complaint Case No. 1670 (C) /2002) approached the Federation for entering into such agreement for sale and purchase of free sale sugar in the trade name of M/s. Panna Lal Prasad Gupta a proprietorship firm. The opposite party No. 2 herein also offered to act as a guarantor and take necessary steps under an agreement executed on 11.9.2001 between the Federation and the said Panna Lal Gupta. Panna Lal Gupta gave certain post -dated cheques as security for due performance of the contract. It would be relevant to mention at this stage that the opposite party No. 2 signed this agreement as witness. For better fulfilment of this agreement dated 11.9.2001 said Panna Lal Gupta executed a power -of -at - torney in favour of opposite party No. 2 Ajay Kumar Gupta to act on his behalf under the aforesaid agreement. By virtue of the agreement dated 11.9.2001 and the power -of - attorney dated 12.9.2001 the Federation gave various drafts and cheques (the specific details of which need not be mentioned here) over a period from 22.4.2002 to 2.5.2002 for a total value of Rs. 39.86.125/ - all drawn on State Bank of India, Kurji Branch, Patna. This amount was to be used for purchase of free sale Sugar and was to be returned with profit, sans the commission amount as provided for in the agreement dated 11.9.2001 within a period of 28 days. For due performance of the agreement Panna Lal Gupta gave several cheques for a total value of Rs. 40.80.085/ - to the Federation over a period from 15.5.2002 to 5.6.2002. The opposite party No. 2 herein Ajay Kumar Gupta the power - of -attorney holder from Panna Lal Gupta also gave two cheques as security to the Federation. Under the agreement these cheques as also those given by Panna Lal Gupta were to be encashed and utilised by the Federation in the event of failure of the contracting agency to act in accordance with the contractual agreement. The details of the two cheques so given by the said Ajay Kumar Gupta are required to be mentioned below for proper appreciation : Cheque No. Date Bank Amount 878491 17.7.2002 SBI Kesaria Rs. 20,00,000/ - 878492 17.7.2002 SBI Kesaria Rs. 20.60.085/ - Rs. 40,60,085/ - These cheques were given in the pen of Ajay Kumar Gupta by his letter dated 26.2.2002 as contained in Annexure 10 to the present application.