CHANDRA SHEKHAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) 1. Through the instant application the petitioner, a dealer of Opposite party No. 2 Company, M/S Associated Cement Co. Ltd. (hereinafter to be referred to as 'the Cement Company') seeks quashing of the order dated 29.07.2004 passed by the learned Chief Chief Judicial Magistrate, Patna in Complaint Case No. 1007(C) of 2003 whereby cognizance has been taken for the offences under Sections 406 and 420 of the Indian Penal Code on the ground that the same was an abuse of the process of the court.

(2.) THE Cement Company brought the aforesaid complaint, inter alia, stating that the petitioner herein, the Proprietor of M/S Chanda Traders, Madhubani was a dealer of the Cement Company to sell cement manufactured by the Company in the local markets and as such they were agent of the cement Company and in that capacity they used to obtain cement from the Company and after selling it in the markets they remitted the price money to the Company, it is said that in the month of September, 2001 the accused required some cement from the Company on from short notice and since requirement of the company of cement was not readily available in company's local stock the accused was asked to wait till arrival of the stock of fresh cement. THE accused then contacted other local dealers of the company for helping him in obtaining the required quantity of ACC cement so that he could supply it to his consumers who urgently needed the cement. Ultimately M/S M.L. Arya & Sons of Kishanganj who were also dealers of the company supplied the required quantity of consumers to the accused and the accused paid the price of the cement by way of Bank Draft of Rs. 95,000/- through demand draft dated 20.9.2001 which had already been prepared by the accused in the name of the Company. THE said bank draft was accepted by the said dealer M/S M.L. Arya and Sons and deposited the same with the Company as it also required to pay the price of cement to the Company by way of bank draft with the request to credit it to its account and accordingly the Company credited the said bank draft to the credit of M/s M.L. Arya and Sons. It is further been alleged that in the month of November, 2001 the petitioner again procured cement from another dealer of the Company, namely M/s Agrawal Trading Co. and this time also the payment of price was made to the dealer by four bank drafts prepared in the name of the company. It is alleged that M/s Agrawal Tading Co. also deposited the said bank draft with the Company which was credited to its account.

(3.) IT has been submitted on behalf of the petitioner that he had not committed any act of omission and commission which can be treated as a criminal act and the Cement Company had filed the complaint against the petitioner as their own account was not straight and the money was paid by the petitioner had not been credited in his name and were not accounted for in his favour. IT has also been submitted that the present criminal case had been filed as a pressure tactics to coerse the petitioner to pay the amount which he does not owe at all. In this context it-was sought to be pointed out that although the petitioner was a dealer of the Cement Company to store and sell ACC Brand Cement yet no written letter of appointment as dealer had ever been given to the petitioner although he used to pay the price of all the consumers received by him and had never been a defaulter and no outstanding dues lay against him. IT has also been stated that on receipt of the Legal notice calling upon him to pay the outstanding dues of Rs. 2,17,500/- with an interest of 18% within 15 days failing which the Company would be free to institute civil/criminal proceeding, the petitioner had replied through his lawyer denying the allegations made against him and asserted that he had received statement of Accounts from the Company on 16.05.2002 only for the period up to 31.3.2002 and in the said statements of account the amount was Rs. 2,38,000/- paid to the Company wherein an amount of Rs. 2,38,000/-was shown paid to the Company through different bank drafts and that they had not accounted for. That apart the Company had paid an another sum of Rs. 50,000/- in August, 2002 and requested the Company to adjust the amount.