SURENDRA PRATAP DHINGRA Vs. STATE

JUDGEMENT

(1.) Instant petition has been filed by accused-petitioner assailing the order of Court of Revision date 16.6.2000 whereby cognizance was taken against him under Section 420 I.P.C and while doing so, the Order of learned trial Judge date 10.6.1994 discharging accused-petitioner has been set aside.

(2.) Facts, which require for necessary adjudication, are that complainant respondent No. 2 Kishori Shyam, who is a Dealer of Blow Plast Ltd., filed a complaint for offence under Sections 420, 468 and 406 I.P.C. in which it was alleged that goods were supplied to him on 26.12.1991 vide Bill Nos. 2250 and 2251 of a sum of Rs. 17,475.25 Paisa and Rs. 12,373.75 Paisa - against which payment was made by complainant after deducting commission on 28.12.1991 for a total sum of Rs. 21,800/- of which receipt was also handed over to him by the authorised person namely ; the accused - petitioner herein. It has further been alleged that at a later stage, one another Agent of the Company namely; Mr. Mukherjee came and to whom for the same transaction further payment of Rs. 21,800 /- was made and immediately and when this fact came to his notice that double payment ahas been made by him. The accused were contracted and the second payment was considered to be advance payment for further delivery, but neither it was adjusted nor it was shown in the statement of account supplied to him by the company. After investigation, challan was filled against accused petitioner along with one co-accused Mukherjee remained absconder the proceedings kept pending against him under Section 173(8) Cr.P.C. and specific reference has been made in the charge sheet. Learned trial Judge while framing charge considered the entire material and observed that so far as present accused petitioner Dhingra is concerned , the payment of Rs. 21,800/- which he received from the complainant by the company and he was not defaulter and any stage an from the material which has come on record no case against accused-petitioner under section 420 I.P.C is made out and finally he was discharge from the offence under Section 420 I.P.C. vide order dated 10.6.1994. Against which complainant filed a revision petition before the learned District Judge - at this stage without giving a notice to the accused-petitioner , the same was allowed.Since that has caused prejudice to petitioner, the order of the Court of Revision was challenged by him by filing Misc. Petition No. 643/1999. Since the order was passed by the Court without hearing to the accused-petitioner on this ground alone this Court allowed the misc. petition vide order dated 26.7.1999 and the the matter was remanded back to the Court of Revision to hear the matter afresh. The Court of Revision after hearing accepted the revision to hear the matter afresh. The Court of Revision after hearing accepted the revision petition preferred by compliant and framed charge against accused-petitioner under Section 420 I.P.C. vide order dated 16.6.2000.

(3.) The main thrust of the counsel for petitioner is that so far as the present petitioner is that so far as the present petitioner and Mr. Mukherjee is concerned, money which he accepted in regard to the goods supplied to the complainant he handed over the receipt and even from the statement of account of the Company which has been supplied to the complainant, it is credited to his account and if the second payment if at all has been received by Mr. Mukherjee of which account is not made available in the company, atleast he cannot be held responsible for it and there is no prima facie material available on record to frame charge against him under Section 420 I.P.C. Counsel further submits that a suit for recovery has been filed by complainant of which reference has ben made in his statement which was recorded during investigation under Section 161 Cr.P.C and this being a civil dispute a colour has been given to it so that by the method petitioner can be prosecuted which is otherwise not legally permissible under law.