KALYAN SUNDARAM CEMENT Vs. PRAMOD KUMAR BEDI

JUDGEMENT

(1.) THIS petition under Section 482 Cr.P.C. has been filed by the petitioner for quashing the order for taking the cognizance against the petitioners as well as for quashing the proceedings pending against the petitioners in Criminal Case No. 220 of 1989 Pramod Kumar Bedi v. Kalyan Sundaram Cement Industirics Limited and Ors. in the Court of the Additional Chief Judicial Magistrate Bikaner.

(2.) PRAMOD Kumar Bedi, Executive Engineer, Indira Gandhi Nahar Pariyojna (Procurement Division) Purchase Circle, Bikaner, on behalf of the State of Rajasthan, filed a complaint against M/s. Kalyan Sundaram Cement Industries Limited and Sarvashri Sanjay Kumar Modi, SuniJ Gautan and Paras Kuhar for offences under Section 133 of the Negotiable Instruments Act and Sections 420 and 120B of the Indian Penal Code. It has been alleged in the complaint that the complainant invited tenders on March 2, 1989, for supply of cement. Several tenders including M/s. Kalyan Sundaram Cement Industries Limited submitted their tenders and after negotiation, the tender of M/s. Kalyan Sundaram Cement Industries Limited was accepted on March 29, 1989 for supply of 15000 metric tones of cement to the complainant. The accused No. 2 to 4, on behalf of the accused No. 1 asked the complainant that if the payment of 23% of the cement is made in advance, which comes to Rs. 50,61,300/ - then the supply of the cement will be made. It was, also, agreed that if the complainant made payment of Rs. 50,61,300/ - then it will be tip responsibility of the accused No. 2 to 4 for the supply of the cement. In pursuance to this assurance, a bond was, also, executed by the accused No. 2 and 3 on April 10, 1989 which is Annexure -5 on record. Condition No. 3 of the and reads as under:

(3.) IT is contended on behalf of the petitioners that on the facts stated in the complaint, the documents accompanied thereto and so also the contents of Annexure -4, the agreement, the contents of the Bond Annexure -5, the documents Annexures -18, 20 and 24 and the notices and the replies thereto, no offence under Section 420 IPC is made out against the accused petitioners. It has been further submitted that from the complaint, as well as from the documents, no offence under Section 138 of the Negotiable Instruments Act is, also, disclosed. It has further been argued that there is no prima facie evidence on record, from which it can be said that the petitioners No. 2 and 3 and the petitioner No. 4 the Directors of the company, Paras Kumar, are vicariously liable in this case. Lastly, it was contended that in view of the fact that the petitioner company has been declared as a sick company under Section 3 of the Sick Industries and Companies Act, the prosecution against the petitioner is barred. The learned Public Prosecutor, on the other hand, has supported the order passed by the learned lower Court taking the cognizance and he has further submitted that the facts mentioned in the complaint clearly disclose that a prima facie case to proceed with against the petitioners has been made out as it has been specifically alleged in the complaint that the accused No. 2 to 4 are the persons responsible for the conduct of the business of the company and, therefore, the cognizance against them has rightly been taken.