DALIP JOLLY Vs. STATE OF BIHAR AND ANR.

JUDGEMENT

(1.) This application at the instance of one of the named accused of Complaint Case No. 468 of 2005, is for the quashing of the order dated 27.9.2006 passed therein by the learned Chief Judicial Magistrate, Katihar, whereby he has taken cognizance of the offence under Section 406 I.P.C.

(2.) The prosecution case is founded on the complaint filed by one Manish Kumar, impleaded herein as O.P. No. 2, and may be noticed with relative brevity. It is alleged that the complainant being the proprietor of the firm, "M/s. Luxmi Lata Trading", Katihar was on 4.1.2002 visited in his office by the then Area Sales Manager of Fena (P) Limited (hereinafter referred to as "the Company") and induced the complainant to deal in products of the company by falsely representing that goods manufactured by the Company are exempted from payment of sales tax and additional tax. It is further alleged that the complainant in view of the assurances given at the conclave and having full faith in the submissions advanced by the said Area Sales Manager and he being an old acquaintance, the informant agreed to deal in the products of the Company and accordingly on demand gave a draft of Rs. 5000/- as interest free security which was acknowledged by the company through its letter of February, 2002. The further allegation is that on the same day on the request of the Area Sales Manager he placed orders for supply of products of the Company and in lieu thereof paid Rs. 90,000/- through two bank drafts each of Rs. 45,000/-. The said Area Sales Manager is again said to have visited the complainant's business premises on 8.1.2003 and being pleased with the performance of the complainant in dealing with the products of the Company proposed and agreed to give the complainant cash credit facilities for which the complainant was to pledge two blank cheques duly signed by the complainant without date and amount mentioned thereupon which was duly complied by the complainant by giving two cheques bearing Nos. 0882324 and 0882325 of the Katihar Main Branch of State Bank of India. In this view of the matter the Company started giving a grace period of 21 days short term credit from its billing date. It is alleged that the Officers and Agents of the Company verbally assured the complainant that it shall compensate the complainant for the damaged stock and at the same time the Company would also take back unsold stock in the event the complainant was unwilling to deal with the products of the Company. The complainant is said to have submitted accounts of the damage costs to the then Sales Officer but notwithstanding several requests and reminders and visits to the Company's office the Company had not compensated the complainant as yet, moreso, when the Sales Manager and one Dayanand Singh had verified the damaged stock of the valuation of approximately Rs. 20,000/- and found unsold fresh stock worth Rs. 40,000/-

(3.) Denying the allegations made in the complaint petition, it was submitted on behalf of the petitioner that the aforesaid cheques had been issued by O.P. No. 2 in lieu of goods supplied by the Company to the complainant from time to time and was meant to clear the monetary liability of the Company that the cheque had been presented before the bank for encashment and as such there was no illegality on the part of the Company in presentation of the cheques. It was also submitted that the petitioner had received the legal notice in the capacity of the Managing Director of the Company on 17.2.2005 without a request to settle all pending matters immediately and in reply thereto by letter dated 23.5.2005 a further request was made to withdraw the notice under reply and pay the outstanding amount of the Company that lay with the complainant with upto date interest. It was also submitted that there was no such agreement or assurances by the Company to compensate the complainant for his damaged goods since the damage to the stock were also caused due to mishandling of the stock on the part of the person responsible to keep the property. To the contrary, the agreement and assurances were to accept such claims of such damage which arises in course of manufacturing or improper handling by the personnel of the Company. Denying the fact that the Officer of the Company had found damaged stock to the extent of Rs. 20,000/-, it was submitted that the petitioner had received a claim of Rs. 1950/- only from the complainant and to the contrary the complainant had not paid his legal dues which he owns to the Company notwithstanding having received a notice under Section 138 of the Negotiable Instruments Act.