SUNITI ENTERPRISES 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 14.08.2013 passed by the Judicial Magistrate, 1st class, Patna Sadar, Patna, in Complaint Case No.1093 (C) of 2013 by which the learned Magistrate after holding enquiry has found prima facie case against the Petitioners for the offence under Section(s) 409 Indian Penal Code.

(2.) As per Complaint Petition, the Complainant hired Mr. Sudhanshu Sinha, Proprietor of Suniti Enterprises for carrying and forwarding the products of the Complainant-Company to the customers in the State of Bihar since 2004 vide several agreements, the latest of which was executed on 28th September, 2010, effective from 1st March, 2010, till 29th February, 201

(3.) Pursuant thereto, from and after 1st March, 2010, the Complainant forwarded products and samples, owned by it to the accused for the purpose of dispatching the said products and samples to the Complainant-Company's Stockists/Dealers immediately on receipt of orders from Stockists/Dealers. The forwarded products and samples were stored by the accused at the Warehouse, which was taken on lease by the Complainant-Company at Patna Cold Storage Building, 190/134, Shahganj, Patna. Subsequently, as the term of the said agreement was to determine/end on 29th February, 2012, the Complainant-Company, vide its letter dated 24th February, 2012, informed the accused that it was not desirous of extending the term of the said agreement. The accused intimated the Complainant that he wanted to extend the terms of agreement between the parties and refused to hand over the products and samples, which were entrusted to him. In terms of the said agreement, the Complainant-Company had supplied products and samples to the accused for an aggregate value of Rs. 3,80,32,947/-. Upon termination/end of the said agreement, those products and samples, owned and belonging to Complainant-Company and entrusted to the accused, were to be returned immediately to the company. The accused had products and supplies worth Rs. 3,80,32,947/- lying at the Warehouse, which belonged to the Complainant-Company. Most of the aforesaid stocks were Scheduled H drugs, which cannot be sold without a prescription of a registered medical practitioner. The ComplainantCompany filed a suit against the accused in the Hon'ble High Court at Bombay, being Suit No.1432 of 2012, when the products were not returned by the Petitioner, for return of their products, goods and samples, assets, equipments, literature, manuals, vouchers, accounts etc. The Hon'ble Bombay High Court vide its order dated 11.05.2012, granted ad-interim relief restraining the accused in any manner dealing with, disposing, selling, transferring and/or creating any third party right, title and/or interest in or with respect to the products, goods and samples, assets, equipments, literature, manuals, vouchers, accounts etc. Pursuant to the aforesaid order dated 30th July, 2012, the representative of the Court Receiver, High Court, Bombay, along with Representative of the Complainant-Company visited Warehouse of the accused at Patna on 4th September, 2012, for the purpose of taking possession of the products, goods and samples, assets, equipments, literature, manuals, vouchers, accounts etc. The total value of products, goods and samples lying with the accused and owned by the Complainant-company as of February, 2012, was of Rs. 3,80,32,947/-. The products, goods and samples actually recovered from Warehouse of the accused and taken into custody by the representative of the Court-Receiver was valued as of September, 2012, approximately Rs. 1,74,20,319/- out of which products, goods and samples to the value of approximately Rs. 6,56,476/- had expired as of September, 2012, and are of no value of the Complainant-Company. The accused in this manner has committed criminal breach of trust by misappropriating medicine and other product of value Rs. 2,06,12,628/- to its own use, which legally belonged to the Complainant-Company.