D.C.Jain, Chairman Welcure Drugs and Farmaceuticals Ltd, and ors. Vs. State of Bihar, and anr. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the respondent worked in the appellant-bank as cashier-cum-clerk. the enquiry was first fixed on november 15, 1994 but on that date the respondent did not appear without giving any intimation to the enquiry officer. due to his non- appearance the enquiry was adjourned to november 28, 1994. after recording his evidence, the enquiry officer closed the enquiry and submitted his report holding the respondent guilty of all the charges. the industrial tribunal found and held that the domestic enquiry held against the respondent suffered from violation of the principles of natural justice. it appears that from the bank this letter was not handed over to the enquiry officer. admittedly, the respondent had not appeared for the enquiry on two earlier dates. in those circumstances and having regard to the fact that the witness intended to be examined by the management in support of the charge had come in connection with that enquiry from delhi to dehradun for the third time, the enquiry officer decided to proceed with the enquiry and examine him ex parte. pw.1 happened to be the branch manager where the respondent was posted at the material time and where the misappropriation was committed by him.1. this application has been filed for quashing the entire proceeding including the order dated 23.3.2004 passed by the judicial magistrate, 1st class, patna, in complaint case no. 633(c) of 2004 by which he has taken cognizance under sections 406, 420 and 120b of the indian penal code.2. by an order dated 23.9.2006, notices were issued to opposite party no. 2 but it has been noted in the order dated 5.1.2006 that despite service of notice, the opposite party no. 2 had chosen not to appear before this court, the application was admitted on that date with an interim order of stay of further proceeding in the court below. even today none appears for the opposite party no. 2.3. the case of the complainant is that he had become a consignee agent at the behest of the accused persons for which an agreement had been entered into between the parties in pursuance to which he had deposited a sum of rs. 2,00,000/- as security. by this agreement, the complainant was to get 15 per cent of simple interest on the money deposited. later, the accused persons also took two cheques from the complainant but returned only one of them. subsequently, despite the agreement, the accused persons allegedly started dealing with the parties directly by-passing complainant and, therefore, caused loss to the tune of rs. 4,00,000/- to him. during enquiry, the complainant was examined on solemn affirmation and, thereafter, cognizance was taken in the matter.4. the arguments on behalf of the petitioners are that there was no inducement on behalf of the accused persons to enter into an agreement and even accepting the same, it would be no offence to induce the person to enter into an agreement. the further submission of the petitioners is that mere breach of certain terms of the agreement would not make the petitioners criminally liable and, therefore, the prosecution is a gross abuse of the process of the court.5. on going through the complaint, i find that there is total absence of any ingredients which would make the petitioners liable for any criminal offence much/less under sections 406 or 420 of the indian penal code. even accepting the complaint in its totality, in my view, mere breach of some terms of agreement between the parties would not make the petitioners liable for prosecution.6. accordingly, this application is allowed and the entire proceeding including the order dated 23.3.2004 passed by sri s.k. singh, judicial magistrate, 1st class, patna, in complaint case no. 633(c) of 2004 by which the cognizance was taken against the petitioners, is hereby quashed.

Judgment:
1. This application has been filed for quashing the entire proceeding including the order dated 23.3.2004 passed by the Judicial Magistrate, 1st Class, Patna, in Complaint Case No. 633(c) of 2004 by which he has taken cognizance under Sections 406, 420 and 120B of the Indian Penal Code.

2. By an order dated 23.9.2006, notices were issued to opposite party No. 2 but it has been noted in the order dated 5.1.2006 that despite service of notice, the opposite party no. 2 had chosen not to appear before this Court, the application was admitted on that date with an interim order of stay of further proceeding in the court below. Even today none appears for the opposite party no. 2.

3. The case of the Complainant is that he had become a consignee agent at the behest of the accused persons for which an agreement had been entered into between the parties in pursuance to which he had deposited a sum of Rs. 2,00,000/- as security. By this agreement, the Complainant was to get 15 per cent of simple interest on the money deposited. Later, the accused persons also took two cheques from the Complainant but returned only one of them. Subsequently, despite the agreement, the accused persons allegedly started dealing with the parties directly by-passing Complainant and, therefore, caused loss to the tune of Rs. 4,00,000/- to him. During enquiry, the Complainant was examined on solemn affirmation and, thereafter, cognizance was taken in the matter.

4. The arguments on behalf of the petitioners are that there was no inducement on behalf of the accused persons to enter into an agreement and even accepting the same, it would be no offence to induce the person to enter into an agreement. The further submission of the petitioners is that mere breach of certain terms of the agreement would not make the petitioners criminally liable and, therefore, the prosecution is a gross abuse of the process of the Court.

5. On going through the Complaint, I find that there is total absence of any ingredients which would make the petitioners liable for any criminal offence much/less under Sections 406 or 420 of the Indian Penal Code. Even accepting the Complaint in its totality, in my view, mere breach of some terms of agreement between the parties would not make the petitioners liable for prosecution.

6. Accordingly, this application is allowed and the entire proceeding including the order dated 23.3.2004 passed by Sri S.K. Singh, Judicial Magistrate, 1st Class, Patna, in Complaint Case No. 633(C) of 2004 by which the cognizance was taken against the petitioners, is hereby quashed.