SUBHASH MODAK Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The instant misc. petition has been filed by the petitioners seeking quashing of the FIR No.258/2010 registered at the P.S. Kotwali, Dungarpur for the offences under Sections 420, 406 and 120B I.P.C.

(3.) Succinctly stated the facts necessary for the disposal of the instant misc. petition are that the petitioner no.3 Mahindra Gujarat Tractor Ltd. is a company having its registered office at Vadodara. The company is involved in manufacture and sale of tractors, tractor parts and spares. The petitioner no.1 is said to be the Manager & Chief Executive Officer of the Company and the petitioner no.2 is said to be working on the post of Senior General Manager of the Company. The respondent no.2 filed a complaint before the C.J.M., Dungarpur on 3.1.2010 against the petitioners and one Lavesh Jain, proprietor of M/s. Shubham Enterprises, Kota authorised distributor of the petitioner no.3 company. It was alleged in the complaint that the respondent no.2 is the proprietor of a proprietorship firm named M/s. Rajeshwari Automobiles. It was further alleged that the complainant firm was allotted a franchise by the firm named, M/s. Shubham Enterprises, Kota, authorised distributor of the petitioner no.3 company. It was also alleged that the complainant in lieu of being granted the franchise, prepared a bank guarantee in the company's favour for a sum of Rs.20 lakhs on 23.10.2008 which was valid till 22.10.2009 and thereafter extended upto 22.10.2010. It was further alleged that a tripartite agreement had been entered into between the parties. It was further stated in the complaint that the complainant received a notice dated 27.9.2010 from the proprietor of Shubham Enterprises on 1.10.2010 as per which the distributor claimed an outstanding amount of Rs.8,30,374/- due to be paid by the complainant to the distributor. The notice was given intimating the fact that if the payment of said amount was not made within seven days from the receipt thereof, the same would be made good by enforcing the bank guarantee as per the tripartite agreement. The complainant replied to the notice on 5.10.2010 whereby the claim about the dues was refuted and it was instructed that unless and until the accounts were settled, the bank guarantee should not be encashed. It was also stated in the reply that as per the arbitration clause between the parties, only the arbitrator was empowered to settle the disputes of accounts between the parties. The complainant's further case is that all the accused persons connived together and fraudulently encashed the complainant's bank guarantee on 6.10.2010 without adhering to the conditions of the agreement. The complainant further alleged that the amount of Rs.20 lakhs for which the bank guarantee was prepared was an amount entrusted to the accused persons and the accused persons committed criminal breach of trust by encashing the bank guarantee without any justification.