LEMOS CEMENTS LTD Vs. DINESH KUMAR SARAF

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceeding including the order dated 1.4.1999 taking cognizance of the offence under Sections 403, 406, 420 and 120B of the Indian Penal Code passed in Complaint Case No. 121 of 1999 by the learned Judicial Magistrate.

(2.) FACTS giving rise to the filing of this application are that opposite party No. 1 Dinesh Kumar Saraf filed a complaint case in the Court of the learned Chief Judicial Magistrate, Ranchi on 23.2.1999 against the petitioners being complaint case No. 121 of 1999 alleging therein that an agreement was executed between the complainant O.P. No. 1 and M/s Lemos Cements Limited on 1.4.1998 by which, the complainant was appointed as liasoning agent of petitioner No. 1 for promoting the sales of cements manufactured by the petitioner No. 1. it was stipulated in the agreement that all payments against the supply will be made by the Account Payee cheques and no cash payment will be accepted. But contrary to the provision of agreement, the petitioners started taking cash advance and payments and thus that part of the agreement was abandoned. Thereafter Ram Swamp Rungta and P.P. Singh, the petitioner Nos. 2 and 3 respectively, came to the office of the complainant on 2.5.1998 and informed that further supplies to the complainant would be made only, if by way of collateral security, two cheques each of Rs. 4.00 lakh are given to the petitioner No. 1 and the petitioner would use the same only in case of default in payment against the supplies made by the petitioners to the complainant/opposite party No. 1. The complainant handed over two post dated cheques dated 2.5.1998 and 2.8.1998 of Rs. 4.00 lakh to the petitioner No. 4 Bajrang Kumar Kedia. On 2.6.1998 the petitioner issued a letter to the complainant that performance of the complainant in lifting the supplies was very poor and as such, the supply to the complainant from Dakra, Lapra, Rai, Dhamdham, Khalari and Bijupara was stopped and all Bills of petitioner No: 1 until 25.6.1998 were settled and paid from 2.5.1998 to 26.6.1998. The complainant had received supplies worth Rs. 38,69,700/ - from the petitioner No. 1 -firm and paid them Rs. 41,33,010/by Account Payee Cheques. The petitioners after taking account have admitted that they owe Rs. 71,460/ - to the complainant prior to their settlement of account on 2.5.1998. Petitioners made it clear to the complainant that from 25.6.1998, the complainant firm would deal with M/s Orbit Vyapar (Pvt) Limited and not with the petitioners and the complainant firm should make all further payments to Orbit Vyapar (Pvt.) Limited, but the complainant through a letter sent under certificate of posting to allthe petitioners informing them that the two cheques issued to the petitioner have now become redundant and, therefore, are being cancelled and as such, petitioners should return the said cheques to the complainant and petitioner Ram Swamp Rungta and P.P. Singh gave assurance that they will return the cheques but they did not return the same and the complainant received the letter dated 12.11.1998 informing him that one of the two cheques dated 2.5.1998 was presented by the petitioners in the bank but the same was dishonoured on the account of insufficient fund and it was made clear that if the amount of Rs. 4.00 lakh is not paid, then a case will be filed against the opposite party No. 1 -complainant. Thereafter complainant issued a legal notice to the petitioners asking them to return the said cheques and in case of any use of said cheques, action would be taken against them. Thereafter complainant filed this complaint case.

(3.) ON the other hand, complainant O.P. No. 1 appeared and filed counter affidavit, from perusal of which it appears that a plea has been taken that the petitioner No. 1 Lemos Cements Limited stopped all supplies to the complainant's firm from 21.6.1998 and directed them to deal with another concern namely Orbit Vyapar (Pvt.) Limited and on receipt of said letter dated 26.6.1998, complainant vide his letter dated 26.6.1998 cancelled two cheques which were given as collateral security and asked the petitioners to return the two cheques forthwith to the complainant as the said cheques were given as collateral security which is admitted by the petitioner in Para -10 of their application under reference. The claim of the petitioners, that they have not received the above letter dated 26.6.1998, is not correct. The petitioners have on 6th July 1998 acknowledged receipts of the complainant's letter dated 26.6.1998 and the above fact totally disapproves claim of the petitioner that they have not received the above letter dated 26.6.1998.