PRASAD KHARWADKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) FOUR out of the five accused of Malsalami P.S. Case No. 39 of 2004 under Sections 406, 420, 120 -B I.P.C. and 138 of the Negotiable Instruments Act (hereinafter referred to as "the N.I. Act") have moved this application for quashing of the entire proceedings including the order dated 19.1.2005 whereby warrant of arrest had been directed to be issued against the accused.

(2.) ONE Pawan Kumar Choudhary, the complainant impleaded as O.P. No. 2 herein, filed the aforesaid Complaint Case No. CA 303 of 2004 which was referred to the concerned police station under Section 156(3) Cr.P.C. on the basis whereof Malsalami P.S. Case No. 39 of 2004 came to be registered. According to the complainant he is the proprietor of M/S. Shree Shankar Salt Company located in Marufganj, Patna City and carries out business in salts and by virtue thereof he is the stockiest, dealer and supplier of high grade iodized edible salts and other kinds of salts which is used in chemicals. It is alleged that on 10.4.2003 at about 3 P.M., accused Nos. 3 and 4, Ashok Singh and R.P. Singh, respectively came to the shop of the complainant and introduced themselves as Manager -cum -Production Incharge and Marketing Manager of M/S. Prakash Gram Udyog having its company at Kanpur (U.P.) which runs the office in the name and style of M/S. Carona Plus Industries Limited, the Managing Director whereof was Mr. Prasad Kharwarkar and Prakash Gram Udyog was the sister concern of Carona Industries Private Limited. The two visitors assured to give good business and invited him to enter into a business with Prakash Gram Udyog and also assured of high profit in business. Being satisfied with their assurance the complainant in good faith promised to send consignment of salt to their branch office at Hajipur and accordingly on 7.6.2003 accused No. 5 placed a heavy order of salt amounting to Rs. 614508.25 from the Kanpur Office for their sister concern at Hajipur and promised to clear the payment within one month of receiving the consignment. The complainant is said to have delivered the goods at Hajipur by different bills, the details whereof have been furnished. It is said that there were earlier dues also amounting to Rs. 7326/ -. It is alleged that after receiving the consignment the accused persons did not send any payment and on reminder a payment of Rs. 1.5 lacs was received through cheque drawn on H.D.F.C. Bank and by another cheque another sum of Rs. 1 lac was received. Then again on 6.2.2004, a third cheque for Rs. 1 lac was received but due to insufficient funds the cheque bounced on 14.2.2004. It is said that a letter by fax was sent on 20.2.2004 informing the accused about the bouncing of the cheque and a demand was made for payment. On 27.2.2004, the complainant sent a lawyer's notice to the accused persons on receipt whereof a demand draft for Rs. 1 lac was sent to the complainant. It is further alleged that on 27.3.2004, he sent another lawyer's notice claiming payment for rent amount which allegedly had not been paid by the accused persons and when he went to Hajipur to enquire into the matter he found the office locked and on inquiry he came Page 1683 to know from the local people that the factory had been closed for about a month. The complainant claims to have tried to contact the Managing Director of Carona Plus who refused to make payment of the rest amount which was to the tune of Rs. 2,71, 834.25/ -. On the aforesaid premise, it was alleged that the accused persons having entered into a conspiracy wanted to cheat the complainant.

(3.) IT has also been submitted that no offence either under Sections 406, 420 or 120 -B I.P.C. can be said to have been made out against the petitioners since the entire amount for the consignment supplied by the complainant had been paid and even otherwise the entire transaction amounted to a business transaction and dispute arising out of business transaction or breach of contract could be resolved only by seeking the remedy on the civil side and the criminal prosecution of the petitioners is unwarranted and not sustainable in the eye of law. It has also been submitted that even if the submissions of the complainant regarding non payment of rent amount is to be believed the same amounts to a matter of recovery of money for which criminal prosecution is not maintainable.