THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2475 of 2007 (Dated : 22-07-2010) Between: M/s.A.V.J.Infotech (P) Ltd. Kokata-700 012 and another …Petitioners A n d M/s.Excel Technologies Rep. By its Managing Partner And State rep. By the Public Prosecutor ….Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2475 of 2007 ORDER: This Criminal Petition has been taken out under Section 482 Cr.P.C. by M/s.A.V.J.Infotech (P) Ltd. represented by its Managing Director Mr.Allok Paliwal with a prayer to quash the proceedings in C.C.No.26 of 2007 on the file of Chief Metropolitan Magistrate, Visakhapatnam. 2. The 1st respondent herein filed a complaint before the Chief Judicial Magistrate, Visakhapatnam under Section 190(1) and 200 Cr.P.C for the offences punishable under Sections 405,417, 418, 423, 426, 427 and 506 IPC alleging inter alia that the accused appointed the complainant as a franchise to the Visakhapatnam territory. The complainant paid Rs.4,50,000/- and entered into a Memorandum of Understanding on 10.3.2004. After receiving the said amount, the accused did not fulfill the terms and conditions of the M.O.U. Thereafter, the accused failed to return the money. The complainant further states that as per the M.O.U., he put up an infrastructure by spending Rs.20,000/- per month as salaries and rent. The complainant being vexed with the attitude of the accused sent a letter dated 6.7.2004 to cancel the franchisee and to return the amount with immediate action. There being no action, he filed a complaint under Section 190 Cr.P.C on the file of Chief Metropolitan Magistrate, Visakhapatnam and the complaint came to be forwarded to the police and the concerned police registered a case in Crime No.159 of 2006. The learned Magistrate took cognizance for the offence under Sections 405, 417, 418, 423, 426 427 and 506 IPC and registered the complaint as C.C.No.26 of 2007. Hence, this Criminal Petition by the petitioner-accused. 3. Heard learned counsel appearing for the petitioner-accused and learned counsel appearing for the 1st respondent-complainant. 4. Learned counsel appearing for the petitioner-accused submits that this Court in Criminal Petition No.4127 of 2006 quashed F.I.R in Crime No.159 of 2006 of III Town P.S., Law and Order, Visakhapatnam and the present complaint filed by the 1st respondent is nothing but replica of averments made in the earlier complaint, which formed basis for registering a case in Crime No.159 of 2006, and therefore, the petition deserves to be allowed. Learned counsel took me to the order passed by this Court in Criminal Petition No.4127 of 2006 laying much emphasis on para 11 of the order passed therein, which reads as hereunder:- “ In the case on hand, admittedly, there is an agreement between the parties. MoU was executed on 10.3.2004. There is no dispute about its execution. One of the conditions, inter alia, is that the complainant agreed to pay advance of Rs.5.00 lakhs (non-refundable) which would be used to provide tools and spares for providing onsite services and repairing of computer parts. Therefore, when there is mutual agreement between the parties, the complainant cannot now turn around and say that there is an inducement or demand for payment of Rs.5.00 lakhs. The allegation in the complaint is that the accused sent only a few of agreed tools required to the laboratory, which are spurious and less priced. It is not in dispute that the accused sent certain materials. All the materials were sent in the year 2004. Those materials were checked and verified by the complainant for about one year, and thereafter, he kept quiet. Now, he turned around and saying that the material sent by the accused are spurious and less priced. It is not the case of the complainant that the accused entertained dishonest intention to cheat him at the time of execution of MoU. There is no entrustment of property to the accused or that the accused converted the same to their own use in violation of any contract.” 5. The contention of the learned counsel appearing for the petitioner appears to be impressive at the first blush but on close scrutiny of the material placed before me, I do not detain myself long to reject the same. 6. Learned counsel appearing for the 1st respondent submits that the present complaint is filed to refund the amount and to cancel the Franchise. But, subject matter in the earlier crime is entirely different, and therefore, any finding recorded in Crl.P.No.4127 of 2006 will not have any bearing on this petition. 7. The present complaint is filed on the basis of Memorandum of Understanding dated 10.3.2004, which gave a cause of action to the 1st respondent to initiate proceedings. It is the contention of the petitioner that the very memorandum of understanding has been arrived at by putting the petitioners under coercion and fear of threat. This is a fact, which is required to be examined during trial. Therefore, I find that this is not a fit case to quash the proceedings in C.C.No.26 of 2007 on the file of Chief Metropolitan Magistrate, Visakhapatnam in exercise of inherent powers of this Court under Section 482 Cr.P.C. 8. Accordingly, the Criminal Petition is dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.22-07-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2475 of 2007 (Dated : 22-07-2010)