Case: Mahesh Choudhary Vs. State Of Rajasthan

2. Appellant was a partner of a firm known as M/s Saraswati Exports. He is also Director of a Company known as `Saraswati Exim Pvt. Ltd. (for short, "the company").3. M/s S.N.Kapur Exports is a firm registered under the Indian Partnership Act, 1932 (for short, "firm"). The Complainant Vikram Kapoor (Respondent No.2 herein) is a partner thereof. The firm was engaged in manufacturing, selling and export of carpets, mats, etc. It developed various types of hand knotted new designs of carpets and acquired special skill therein.4. Indisputably, the two firms entered into a contract on or about 1.4.2001 in terms whereof, inter alia, the firm agreed to help and assist the appellant with regard to production, i.e., designing, colouring, dyeing, finishing, etc. The firm also agreed to provide knowledge and know-how for the carpet production by the appellant for making their products readily saleable and more-marketable. The firm for the said purpose was to receive 10% commission on the invoice value of each and every invoice and total sales made directly or indirectly by theof the clauses of the said agreement are asThat the SECOND PARTY shall have an office provided by the FIRST PARTY to carry out supervising of all the work of designing etc. and auditing/checking of account records/books.xxx xxx xxx14. That the SECOND PARTY shall have right to auditing, checking of accounts books/records etc., through their auditor at any time and the FIRST PARTY will cooperate in this regard.15. That if the sum due on account of 10% commission is not paid promptly as soon as the sum due becomes Rs. 3 Lacs, the SECOND PARTY shall on the strength of this agreement alone, file a law suit for the recovery of dues and bringing a stay from the law court of the business and its total activity till the full payment has been made along with 15% interest for the period of delay and full cost of law suit has been cleared and paid in full by the FIRST PARTY.xxx xxx xxx23. That the FIRST PARTY has an assurance from SECOND PARTY that sales (export sales of Hand Knotted Carpet) will be done with the help of SECOND PARTY.24. That the FIRST PARTY is singly taking up to produce only Hand Knotted Carpets without any compromise in execution of quality. Any defective carpets produced by the FIRST PARTY shall be entirely FIRST PARTYs responsibilities.25. That neither FIRST PARTY nor SECOND PARTY can enter into such agreement with any one else.The said agreement continued till 31.3.2003. Indisputably again with effect from 1.4.2003, another agreement has been entered into by and between the parties thereto whereby and whereunder it was agreed that the appellant would pay a sum of Rs.17 lakhs per month to the firm for a period of two years. It is furthermore not in dispute that whereas the firm claims a sum of Rs.4,49,85,581/- towards commission payable to it towards export but only a sum of Rs.3,21,06,910/- has been paid.6. Inter alia alleging that the appellant herein has committed the offences of criminal breach of trust and/or of cheating and forgery, on the premise that he had made sale of about Rs.9 crores in the year 2002-2003 through a sister concern wherefor no commission was paid although the technical know-how was made available by the firm, a complaint petition was filed in the court of Judicial Magistrate No. 22, Jaipur City, Jaipur on or about 13.08.2004.7. The learned Magistrate directed the officer-in-charge of the Brahmpuri Police Station to lodge a First Information Report (FIR). Pursuant thereto or in furtherance thereof, a FIR was lodged. On completion of investigation, a detailed charge-sheet has been submitted on or about 8.1.2007. In the said charge-sheet, it was, inter alia, opined that no manipulation in the records has been committed for showing sale of carpet through the sister concern,it is assumed that the sale made by Saraswati Exim is the indirect sale of Saraswati Export, yet no commission is payable to Shri Kapoor on the sale of tufted carpets and hand knotted carpets purchased from other firms. No such fact has come into light from the entire records of sale made by Saraswati Export and Saraswati Exim that sale made by Saraswati Export has been shown to be the sale made by Saraswati Exim by committing any manipulation in the records.Analyzing the terms of the contract, it was stated that the complainant did not raise any protest from time to time with regard to the purported breaches thereof on the part of the appellant and in any event, the same gives rise to a civil dispute.9. It was, however, found that different invoices were presented to the bank showing different amounts and quantities vis-à-vis the firm,partners of Saraswati Export by showing the amount of commission in the invoices falsely and wrongly and by deducting the amount of commission from the total sale value in wrong and false manner have shown the less sale turnover and consequently, an offence under Section 420, 467, 468 IPC is found proved for paying less commission than the actual due commission to Shri Kapoor and commission of breach of trust.3. Invoice No. 1610/23.4.02 which has been submitted by Saraswati Export with the bank, rate of carpets is shown at higher rate and the rate of carpet in the invoice given to the complainant is shown lower. Thus, no satisfactory explanation regarding difference in the sale rate of carpet in the copies of the above invoices is available on record. However, in comparison to the annual sale turnover of Saraswati Export, difference of total sale value of US $ 34096.00 of the above one bill and difference amount 2005 US $ is ignorable, but it is proved that Shri Mahesh Chaudhary by making the false entry in the invoices has saved the commission of 200.5 US $ payable to Shri Kapoor and has not paid the same to Shri Kapoor against which offence punishable under Sections 420, 467, 468 IPC is found proved.The learned Chief Judicial Magistrate took cognizance of the offences against the appellant by an order dated 9.1.2007. Appellant thereafter filed an application for quashing of the said order before the Rajasthan High Court which has been dismissed by reason of the impugned judgment.

Reasoning: The complainant in terms of the said agreement was not only entitled to inspect the documents maintained by the accused but also to get the same audited. It is, therefore, difficult to hold as has rightly been opined by the Investigating Officer that a case for imposing a criminal liability on the accused on that score has been made out. While saying so, we are not unmindful of the limitations of the courts power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole.The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders.We, however, must place on record that before us Mr. Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled.In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in the event the appellant appears before the learned Magistrate within a period of four weeks from date and files an application for grant of bail, he shall be released on bail on such terms and conditions as the learned Magistrate may seem fit and proper.In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant.