RAMWI TISSUES Vs. R J KAOL

JUDGEMENT

(1.) ON a private complain filed by the respondent against petitioners learned trial court, Sub -Registrar Judicial Magistrate Jammu has issued the process of summoning the accused by his order dated 27.7.2002 on being satisfied that the complaint and preliminary statements prima facie disclose commission of offence under Sec.420 RPC.The accused petitioners through this petition are seeking quashing of the complaint as well as the order of the learned trial court dated 27.7.2002,.by invoking the powers of this court under Section 561 -A Cr.P.C.The gist of the complaint as follows: - -

(2.) THE complainant is the Works Manager of M/s. Trikuta Chemicals Pvt. Ltd. a company incorporated under companies Act which deals in the manufacture of all grades of Calcium Carbonate (precipitated and activated calcium) in its industrial unit at Bari Brahamana Jammu. The petitioners are all officers of the company, Pamwi Tissues (Lessees SWIL Limited) having its industrial unit located in Barotiwala Solan, which make use of precipitated calcium carbonate as raw material in their unit for manufacturing of various paper products.In the first week of October 1988 the General Manager of the complainant comapany ahd a telephonic discussion with the Purchase Manager of accused company and during the discussion the accused -company offered to purchase the products of the complaint comapany i.e. precipitate calcium carbonate by extending a representation that the company of the accused was fiancially viable company of national and international repute and would abide by the terms and conditions, including timely payment for the goods purchased.Pursunat to the settlement reached the complainant by his letter dated 17.10.1998 informed the company of the accused that he would visit Barotiwala for further discussion in the matter.The purchased Manager of the accused -company asked the complainant to send samples of them.Thereafter formalities were completed and a decision was made by the complainant -company to supply the products to the company of the accused on the promise that payment shall be made within 45 to 60 days after the receipt of supplies.Accordingly the complainant -company mde the supplies of Precipitated calcium carbonate in trucks to the accused company and the accused company initially made certain payments in accordance with the agreement reached but thereafter it defaulted and as per the claim of the complainant an amount of Rs. 2,62,464/ - remained unpaid upto the month of September 2001. This amount was not paid, therefore the complainant has instituted a complaint against the accused alleging therein that the accused No. 1 to 3 had made false representation that their co,mpany was financially viable company and that they would make payment within 40 days from the date of supply and that had the accused made it clear that they would not be able to keep the payment schedule to the complainant would not have agreed to make supply to the accused.The complainant further alleged that the intention of the accused persons from the very beginning was criminal and false representations were made by them for the purpose of deceiving the complainant and dishonestly inducing him for parting with the property.

(3.) IN the petitioner filed under Section 561 -A Cr.PC the accused -petitioners in Para 3 of the petition have stated as follows: "Petitioner No. 1 is a sick company and was so declared by the Board for Industrial and Financial Reconstruction in February 1993 under the Sick Companies (Special provision) Act 1983 with effect from 01.4.1985." The petitioners have also referred to Section 22 of the sick Industrial Companies (Special Provisions) Act which contains a provision that no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with further.except with the consent of the Board, as the case may be the appellate authority.