KAMAL MUKHERJEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner who was once upon a time Director of M/s Bio Start Products Private Limited (hereinafter referred to as "the Company") and had submitted his resignation in the month of January, 2004 and has been impleaded as one of the accused in Complaint Case No. 456(C) of 2005 is aggrieved by and seeks the quashing of the entire criminal proceedings arising therefrom including the order dated 6.6.2005 passed by Ms. Saroj Kumari, Judicial Magistrate, 1st Class, Patna, whereunder she has taken cognizance of offences under Ss. 420 and 406 of the Indian Penal Code against all the six accused named in the Complaint Petition including the petitioner.

(2.) BRIEFLY stated, the prosecution case as culled out from the complaint petition submitted by one Narendra Kumar Singh, inter alia, is that the Company the manufacturer, importer and dealer in cosmetics, toiletries, personal care, Ayurvedic medicines herbal products etc. being desirous of having a distribution centre for the receipt, storage and sale of its products in the State of Bihar had appointed the complainant as its C&F Agent vide agreement dated 1.2.2004 and having deposited the demanded sum of Rs. 4,00,000.00 as security money started working as C&F Agent of the said Company. It is alleged that after receipt of the aforesaid sum the accused persons started non -cooperating in the smooth functioning of the business, delaying attitude towards payment of commission, sales tax and putting new conditions irrespective of the terms and conditions incorporated in the agreement. It is further alleged that notwithstanding his efforts to rationalise the matters the accused persons did not take proper initiative and eventually on 19.6.2004 the complainant sent a fax message to accused no. 2 to settle all accounts and to make payment of all his dues and to take back all the stock lying with him whereupon accused no. 2 gave assurance of refunding the security money within a few months but has been unable to honour the same with mala fide intention and dishonest motive. Several visits and meetings are said to have been undertaken at Calcutta to resolve the embroglio and receive back the security money but without any success. Eventually, it is alleged, on an invitation of accused no. 2 when the complainant went to the office of the Company at Calcutta on 3.1.2005, he was ill - treated by the accused persons and threatened with dire consequences and was specifically asked not to ask for refund of the security money. Having returned to Patna, the complainant approached the Kotwali Police who adviced him to seek relief before the court. Hence the complaint. It has been submitted on behalf of the petitioner that though he was the Director of the aforesaid Company for a very short period of time, he had tendered his resignation in the month of January, 2004 which was accepted and he was relieved immediately and the acceptance of the resignation in FORM -32 under the Companies Act had been handed over to him by the Company on 23.3.2004. He had no concern with the Company when the alleged dispute is purported to have begun on 19.6.2004, according to the complaint petition. It would thus follow that on the date on which the alleged dispute arose, the petitioner was not one of the Directors of the Company. It has further been submitted that the petitioner had no knowledge about the complainant or his firm nor he was aware of or of being a signatory on the agreement dated 1.2.2004 and as such it was quite obvious that the petitioner has been falsely implicated in this case. The learned counsel further sought to submit that it would be apparent from a perusal of the complaint petition as also the statement of the witnesses recorded at the inquiry under Section 202 Cr.P.C. that the entire dispute revolved around the settlement of accounts between the parties and there being no criminal liability the remedy lay under the civil law and a competent court of civil jurisdiction. According to the learned counsel for the petitioner continuance of the instant criminal proceedings against the petitioner would amount to an abuse of the process of the court.

(3.) IN a case under Ss. 406 and 402 of the Indian Penal Code the intention to cheat or misappropriation must be shown to be in existence at the very beginning of the transaction. Where there is no such criminal intention at the beginning then repudiation of agreement on any ground or for a reason may give rise to civil liability simplicitor and prosecution in such case would be an abuse of the process of the court.