In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- CRIMINAL MISCELLANEOUS No.12203 OF 2003 1. Partho Mukherjee , S/O P.Mukherjee, Area Sales Manager, Parle Agro Pvt. Ltd., Mumbai 2. Prakash Chauhan, S/O A.R. Chauhan, Chairman, Parle Agro Pvt. Ltd., Mumbai ----------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Sandeep Kumar, S/O Sri Shailendra Kumar Chaturvedi, resident of 101, Arya Complex, near Jahaji Kothi, Kadam Kuan, Patna-3 ------------------Opp.Parties. WITH CRIMINAL MISCELLANEOUS No .30656 oF 2003 KISHAN KOTHARI, S/O Late Amirchand Kothari, Director, M/S Swastik Agro India Ltd., 25 A, Janpath Unit III, Bhubaneshwar , Orissa ------------------Petitioner Versus 1. THE STATE OF BIHAR 2. Sandeep Kumar, S/O Sri Shailendra Kumar Chaturvedi, resident of 101, Arya Complex, near Jahaji Kothi, Kadam Kuan, Patna-3 -----------------Opp.Parties. ----------------- For the petitioners: Sri Shivendra Kumar Singh, Advocate For the State : Sri Matloob Rab, A.P.P. (in Cr.Misc.No. 12203 of 2003) For the petitioner: Sri Ashwani Kumar, Sr. Advocate For the State: Smt. Indu Bala Pandey, A.P.P. ( in Cr.Misc.No.30656 of 2003) --------------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Both the aforesaid petitions arise out of same impugned order 2 and, as such, both the petitions were heard together and are being disposed of by the common Judgment. 2. Both the aforesaid petitions were filed under Section 482 of the Code of Criminal Procedure with a prayer to quash of an order dated 14.2.2002 passed by the learned Judicial Magistrate,1st Class ,Patna in Complaint Case No. 21( C) of 2002. By the said order, the learned Magistrate has taken cognizance of offences under Sections 420,409 and 120B of the Indian Penal Code against seven accused persons, which include the petitioners in both the cases. 3. Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate,Patna vide Complaint Case No.21 ( C) of 2002 on allegation against the petitioners and other accused persons for commission of offences under Sections 406,409,420 & 120B of the Indian Penal Code . It was disclosed by the complainant that earlier he was appointed as Stockist of Parle Agro „Bailley‟- Pure Drinking Water for the State of Bihar vide an agreement dated 3.7.2002 by accused no.1, namely, Raman Kumar, Managing Director, M/S Gangotri Beverage, Jamshedpur . It was alleged that the complainant was given to understand that Gangotri Beverage was a franchisee unit of Parle Agro Pvt. Ltd, Mumbai of „Frooti „brand and had thus authorized the said Gangotri Beverage as its franchisee unit to establish and start manufacturing of Parle Agro- Baillegy –Pure Drinking Water and Gangotri Beverage was looking for business associates for Bihar . Accordingly, the complainant expressed his desire to contact Mr. Raman Kumar (accused no.1), Managing Director of the Gangotri Beverage. The complainant visited Jamshedpur 3 along with the witnesses. The complainant was, thereafter, shown the plan under construction at Ranchi-Jamshedpur Road near Mango, Jamshedpur .After initial discussion, accused no.1 demanded Rs.3 Lacs as security deposit for appointment of the complainant as Stockist for the State of Bihar. The complainant disclosed that on different dates and by different modes including Bank Drafts, he made entire payment, break up of the same has been given in detail in the complaint petition. A Notarized agreement was also executed. After the payment was made, the complainant was informed telephonically by accused no.1 that due to some operational failure at the plant of Gangotri Beverage, Jamshedpur, initially supply will be made by M/S Swastik Agro India Ltd, which was also a licensed franchisee unit of Parle Agro Pvt. Ltd, Mumbai. However, no supply was made despite several telephonic reminders. Only single consignment of goods reached at Patna that, too, in fully damaged condition. The complainant, thereafter, informed accused no.1 who, according to the complainant came to Patna on 26.7.2001 and after verifying the said damage goods agreed to re-supply the goods as per agreement norms dated 3.7.2001. One another consignment also was received by the complainant, for which as per agreement a Bill of Rs. 66,382.50 was sent to accused no.1 through courier. Subsequently, a credit note of Rs.24,060/- dated 1.8.2001 was communicated to the complainant by the office of accused no.1 with the statement of account signed and sealed by the Chartered Accountant for the Gangotri Beverage. For sometime business transaction of the complainant with accused no.1 continued. However, on 30.9.2001 the complainant came to know that Gangotri Beverage, Jamshedpur was not a franchisee of 4 Parle Agro Pvt. Ltd.,Mumbai. In fact, Gangotri Beverage was an agent of M/S Swastick Agro India Ltd., Bhubaneshwar, who had authorized the Gangotri Beverage to book order and collect D.D. in favour of M/S Swastik Agro India Ltd. Bhubaneshwar. It was further alleged by the complainant that M/S Swastik Agro India Ltd., Bhubaneshwar had also authorized Gangotri Beverage to appoint Stockist/ Dealer for Parle Bailley –Pure water in Jharkhand and Bihar. After coming to know that Gangotri Beverage was not the franchisee unit of Parle Agro Pvt. Ltd. Mumbai, the complainant contacted accused no.5, B.L. Venkateshwar , Vice President, Parle Agro Pvt. Ltd., Mumbai and also faxed a letter dated 15.9.2001 with all details and also a copy of the agreement dated 3.7.2001 and pointed out that accused no.1 was using the Parle Agro ( Bailley) on his letter pad and relevant documents. The complainant also stated in paragraph 23 of the complaint that accused no.5 informed the complainant that Gangotri Beverage was not the franchisee unit of Parle Agro Pvt. Ltd., Mumbai and given assurance that he will try to settle the matter amicably among the parties. The complainant subsequently met accused no.6, General Manager, Parle Agro Pvt. Ltd. Mumbai and also contacted the petitioner in Cr.Misc.No.30656 of 2003, Kishan Kothari, accused no.3, who was the Director, Swastik Agro India Ltd., Bhubaneshwar. The complainant further disclosed that accused no.3, Kishan Kothari informed the complainant that Gangotri Beverage was mere their agent and accused no.6 assured that he would look into the matter. The complainant on 30.9.2001 was informed by accused no.5 that one Partho Mukherjee , accused no.7 ( petitioner no.1 in Cr.Misc.No.12203 of 2003) will be sent to Patna to solve the problem 5 and thereafter accused no.7 reached Patna and met the complainant. Accused no.1 also came to Patna and on 5.10.2001 a meeting took place and a mutual agreement was signed in presence of accused no.7 and other witnesses, who put their signatures as witness to the agreement dated 5.10.2001 . According to the said agreement, accused no.1 admitted that he was mere an agent of Swastik Agro India Ltd, Bhubaneshwar. By the said agreement, accused no.1 immediately agreed to pay Rs.2, 48,187 and rest amount including security deposit of Rs. 3 Lacs and commission plus interest @ 12 % on the security deposit of Rs.3 Lacs within 30 days from the date of said agreement. Despite the said agreement, accused no.1 did not pay any amount and in the meanwhile supply of goods was also stopped by accused no.3, whereas verbally accused nos.5,6 and 7 had promised that supply would not be a problem. Finally, the complainant even got legal notice served on accused no.1 and said notice was also communicated to all the accused persons with a request to help the complainant to get his money back amounting to Rs. 6,48,187 /- from the accused no.1, which was fraudulently taken by accused no.1. In paragraph 30 of the complaint petition, the complainant asserted that “now it seems that the assurance of help as promised by accused no.3, 5,6 and 7 was just an eye wash and to help the accused no.1 in defrauding the complainant”. On the aforesaid facts, the complaint was filed. After the complaint petition was filed, the learned Chief Judicial Magistrate transferred the same under Section 192 of the Code of Criminal Procedure to the court of learned Judicial Magistrate, 1st Class,Patna and after conducting enquiry, the learned Judicial Magistrate, 1st Class, Patna vide its order dated 6 14.2.2002 took cognizance of offences under Sections 420,409 and 120B of the Indian Penal Code against all the seven persons , who were arrayed as accused in the complaint petition and directed for summoning them. 4. Aggrieved with the order of cognizance, aforementioned petitioners approached this Court by filing a petition under Section 482 of the Code of Criminal Procedure. In Cr.Misc.No.12203 of 2003, Sri Shivendra Kumar Sinha, learned counsel for the petitioners has argued that on perusal of the entire complaint petition, which has been described in detail, no offence is made out implicating both the petitioners, who were associated with Parle Agro Pvt. Ltd.,Mumbai. It was submitted that in the whole complaint petition, it has been categorically alleged by the complainant that he was initially persuaded by accused no.1, purported to be the Managing Director of M/S Gangotri Beverage, Jamshedpur pretending to be franchisee of petitioners Company, namely, Parle Agro Pvt. Ltd., Mumbai for being appointed as Stockist . It was accused no1, who can be held responsible for loss occurred to the complainant. In any even, it was submitted that the petitioners cannot be held responsible for an act committed by accused no.1, i.e. Raman Kumar, who was the Managing Director of M/S Gangotri Beverage, Jamshedpur. The complainant had entered into an agreement with accused no.1 and even at subsequent stage when the business transaction in between the complainant and accused no.1 had stopped, accused no.1 on an agreement had agreed to make payment of all the dues of the complainant. Accused no1 was not having any connection either directly or indirectly with the petitioners. It was 7 submitted that in a mechanical manner, learned Judicial Magistrate has passed the impugned order, which requires to be interfered with. 5. Similarly, in Cr.Misc.No.30656 of 2003, it was argued that whatever transaction had taken place was taken place in between the complainant and accused no.1. In view of the facts disclosed in the complaint petition or even during the enquiry, nothing has been brought on record to show that this petitioner, who was the Director of M/S Swastik Agro India Ltd., Bhubaneshwar , had directly or indirectly committed any offence. Accordingly, it has been prayed to quash the order of cognizance and entire proceeding. 6. In the aforesaid both cases despite valid service of notice, Opp.Party no.2, the complainant, has not bothered to appear and place his stand. However, learned Addl. Public Prosecutor appeared on behalf of the State, which was a formal party. 7. Besides hearing learned counsel for the petitioners in both the cases as well as learned Addl. Public Prosecutor, I have also examined the materials available on record. On the basis of assertion made in the complaint petition itself, the Court is satisfied that directly or indirectly, petitioners of both the petitions cannot be held responsible for omission/commission of any offence. On the basis of averments made in the complaint petition, it is clear that whatever offence was committed was committed by accused no.1. In view of absence of any material to proceed with the petitioners, the Court is of the opinion that the learned Magistrate, while passing the impugned order, has proceeded in a mechanical way without application of mind. The Court is of the considered view that allowing such proceeding so far as petitioners of 8 both the cases are concerned, will amount to allowing abuse of the process of the court. 8. Accordingly, with a view to prevent the abuse of the process of the Court, it is a fit case for exercising inherent jurisdiction in favour of the petitioners. As such, the order of cognizance dated 14.02.2002 passed by learned Judicial Magistrate, 1st Class, Patna in Complaint Case No.21 (C) of 2002 so far as aforementioned petitioners are concerned is hereby set aside and both the aforesaid petitions are allowed. Patna High Court,Patna Dated : the 31st January,2011 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)