Shanti Devi Atal and Another vs Jain Enterprises and Another

Ranjan Gogoi, J.—Both the revision petitions having raised common question of law on identical facts are being disposed of by this common judgment and order.

The two revision petitioners in Criminal Revision No. 348 of 1999 and the solitary revision petitioner in Criminal Revision No. 391 of 1999 are the accuser Nos. 2, 3 and 4 in Complaint Case No. 136/99 pending in the Court of the learned Chief Judicial Magistrate, Dibrugarh. The accused petitioners have sought to invoke the powers u/s 482 of the Code of Criminal Procedure for quashing the criminal proceeding instituted before the learned Court below.

The power u/s 482 of the Code of Criminal Procedure to quash a proceeding pending before a competent Court is a rare power to be exercised only in cases whore the complaint petition and the initial deposition of the complaint, taken together and if accepted in its entirety do not prima facie disclose, the offence as alleged. The law governing the exercise of power u/s 482 of the Code of Criminal Procedure is no longer res integra. There can be no consideration of any possible defence that may be available to an accused and if the complaint petition and the initial deposition read together discloses the commission of the offence alleged, the power u/s 482 of the Code of Criminal Procedure would not be exercised by the High Court to quash the proceeding,

Applying the above law to the present case, what is noticed is that in the complaint petition, it has been stated that the accused-firm consisting of the accused Nos. 2, 3 and 4 as its partners had entered into a contract for delivery of one rake of cement to the complainant-firm and a sum of Rs. 40,00,000 was received by way of advance payment. The promise made by the accused-firm did not materialise and the accused firm had acknowledged its liability and had promised to effect the supply of cement. Eventually, the accused-firm agreed to return the money received and had issued un-dated cheques in favour of the complainant with the intimation that the complainant may fill up the dates as per instructions of the accused. It is the further case of the complainant that though repeated requests were made to the accused-firm to let the complainant know of the dates which should be entered in the cheques, the said requests were not responded to and eventually, instructions were issued to the bankers to stop payment of the cheques. There is a clear and categorical statement in the complaint petition that the accused Nos. 2, 3 and 4 are responsible for conduct of the business of the firm. The allegations made in the complaint petition as well as initial deposition as already noticed, must be accepted to be correct at this stage. On such an assumption being made, it cannot be said that the offence u/s 409 of the Indian Penal Code as alleged is not disclosed by the averments made by the complainant.

The only argument advanced by Mr. J.M. Choudhury, is that though in Para 3 of the complaint petition, the accused Nos. 2, 3 and 4 have been stated to be responsible for conduct of the business of the firm, the tenor of the complaint does not substantiate the same. The averments made in the complaint petition regarding the involvement of the accused Nos. 2, 3 and 4 in running the affairs of the firm are sufficiently clear and cogent and must be accepted to be correct at this stage. The law relied on by Mr. Choudhury in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, turns on its own facts and would not applicable to the facts of the present case in view of the clear and categorical statement in Para 3 of the complaint petition regarding the involvement of the accused Nos. 2, 3 and 4 with the conduct of the business of the accused-firm.

For the aforesaid reasons, I do not find any merit in either of the revision applications. The same shall stand dismissed. The stay order, if any, stands vacated. Registry shall transmit the case records to the learned trial Court.