Delhi District Court
M/S. Anu International vs . M/S.Saru International And Ors. on 14 July, 2008
1
IN THE COURT OF SH. RAJ KUMAR:MM
KARKARDOOMA COURTS / DELHI
M/s. Anu International Vs. M/s.SARU International and Ors.
CC No. 2/05
P.S. Farsh Bazar
U/s : 420/34 IPC
ORDER
1. In the present complaint u/s.420/34 IPC, filed by the complainant Pramod Kumar Aggarwal, it is alleged that he is the proprietor of the complainant company M/s.Anu International and accused no. 2 & 3 are the partners of the accused no.1 firm. The gist of the allegations as alleged by the complainant against the accused persons/respondents are that the accused persons approached the complainant for supply of non-woven fabrics and to get the job work of quilting done for their firm and at the assurance of the accused persons, the complainant supplied the material and did the job work in between the period from 26.05.2004 to 07.07.2004 as per the allegations given in para 3 of the complaint. The total amount of the material supplied was to the tune of Rs.1,16,669/-. It has been submitted that after repeated request from he accused persons the accused persons reluctantly gave to the complainant a cheque for Rs.19,590/- dt. 21.08.2004 in part consideration of the material supplied and the job work done for the M/s.Anu International Vs. M/s.SARU International CC No.2/05 2 accused persons. It has been submitted that material has been received by the accused persons through challan ST-38 inward of accused no.1. It has been submitted that the accused persons failed to make remaining payment of Rs.97,079/- despite the issuance of the legal notice dt.02.11.2004 which was duly served upon the accused persons. It has been submitted that the conduct of the accused persons clearly establishes that the accused persons had the dishonest intentions at the very beginning of the transaction and as such they had committed offence u/s.420/34 IPC.
2. Complainant has filed certain documents in support of his complaint which are as follows:
i) Photocopy of challan no.502 of SARU International
ii) Photocopy of challan no.513 of SARU International
iii) Photocopy of challan no.96 of Anu International
iv) Photocopy of bill no.75 of Anu International
v) Photocopy of challan no.107 of Anu International
vi) Photocopy of bill no.84 of Anu International
vii) Photocopy of challan no.108 of Anu International
viii) Photocopy of bill no.85 of Anu International
ix) Photocopy of form no.ST-38 NO.4420540
x) Photocopy of bill no.103 of Anu International M/s.Anu International Vs. M/s.SARU International CC No.2/05 3
xi) Photocopy of form no.ST-38 4420543
xii) Photocopy of legal notice dt.2.11.2004
xiii) Regd.postal receipt no.004 to 006 dt. 4.11.04 issued by post office, Vishwas Nagar, Shahdara, Delhi-32.
xiv) Photocopy of UPC dt. 08.11.2004 from Post office, Vishwas Nagar, Shahdara, Delhi-32.
xv) Acknowledgment receipt of M/s.SARU International xvi) Acknowledgment receipt of Sh. Brij Bhushan xvii) Acknowledgment receipt of Sh. Sandeep.
3. The complainant has examined three witnesses during pre-
summoning evidence. Sh. Pradeep Kumar Aggarwal was examined as CW1 who had stated that Sh. Pramod Kumar Aggarwal is the proprietor of the complainant company and in his presence the accused persons came to the complainant and the material was supplied and the job work was done by the complainant for the accused persons but have failed to make the payment.
Sh. Pramod Kumar Aggarwal examined himself as CW2 who reiterated in his examination-in-chief all the allegations as levelled in the complaint and he has proved on record the gate pass/challan no.502 dt. 26.05.2004 as Ex.CW2/A, gate pass no.513 dt.01.06.2004 as Ex.CW2/B and gate pass M/s.Anu International Vs. M/s.SARU International CC No.2/05 4 no.1335816(challan out ward) as Ex.CW2/C. He has also proved on record photocopy of the challan form 38 as Mark A and B. He has proved on record seven bills and the challan received by the complainant against the accused persons asEx.CW2/D to Ex.CW2/J. He has also proved on record the copy of the legal notice as Ex.CW2/K which was sent through registered AD and UPC which are Ex.CW2/L to Ex.CW2/O, duly received AD cards Ex.CW2/P to Ex.CW2/R. The complainant has further examined Sh. Mansa Ram clerk from Dy. Excise and Taxation Commission Office, Gurgaon, Haryana as CW3 who has proved on record the daily stock and issue register of challans dt. 26.05.2004 at serial no.215 of page no.47 of the said register as Ex.CW3/A.
4. Ld. Counsel for the complainant has filed on record the written arguments on behalf of the complainant. In the written final arguments Ld. Counsel for the complainant has relied upon an authority cited as 2006 (3) RCR (Criminal) Page 740 titled as M/s.Indian Oil Corporation Vs. M/s.NEPC India Ltd. & Ors. wherein it has been held that :
"(B)Indian Penal Code, Section 415, 420 - Breach of contractual terms is cheating if the accused had dishonest intention at the beginning of transaction in addition to the M/s.Anu International Vs. M/s.SARU International CC No.2/05 5 subsequent failure to fulfil the promise - In the instant case accused had been purchasing aircraft fuel from I.O.C.(Indian Old Corporation)- IOC stopped the supply when a sum of Rs.18 crores became due from accused -
Accused induced the IOC to resume supply on cash cases and undertook to clear the outstanding amount within a stipulated period - accused not paying Rs.18 crores - Offence of cheating made out - No ground quash complaint - Proof of such allegations or ultimate outcome of trial at this stage."
"(C) Criminal Procedure Code, Section 482 - Indian Penal Code, Sections 415, 406, 420 - A party purchasing goods and not paying dues as per complaint - Breach of contract by a party - Facts showed that party had intention to cheat from very beginning - Availing of civil remedy - Criminal remedy is not barred - No ground to quash criminal complaint - Defence plea that it was purely civil remedy may lead to acquittal of accused, but it is no ground to quash criminal complaint."
5. It has to be seen that the complainant has been able to show the prima facie on record that the accused have been M/s.Anu International Vs. M/s.SARU International CC No.2/05 6 supplied the material by the complainant and the accused persons failed to make the remaining payment of Rs.97079/- to the complainant. The complainant has alleged in the legal notice dt. dt.02.11.2004 that intention of the accused persons from the very beginning was to cheat the complainant as such they have failed to make payment despite the service of the aforesaid notice. In the opinion the case of the complainant is squarely covered by the ratio of the aforesaid authority of Hon'ble Supreme Court of India and as such I am of the opinion that the complainant has been able to make out the prima facie case against the accused persons. Let both the accused persons be summoned on filing of PF & RC by the complainant for 20.12.2008.
Announced in the open court on 14.07.2008 ( RAJ KUMAR ) METROPOLITAN MAGISTRATE KARKARDOOMACOURTS:DELHI M/s.Anu International Vs. M/s.SARU International CC No.2/05 7 M/s. Anu International Vs. M/s.SARU International CC No. 2/05 P.S. Farsh Bazar U/s : 420/34 IPC 14.07.2008 Present:- Complainant with counsel.
Vide separate order, the present complaint u/s.420/34 IPC for summoning the accused is hereby allowed. Accused persons be summoned on filing of PF & RC by the complainant for 20.12.2008.
MM/14.07.08 M/s.Anu International Vs. M/s.SARU International CC No.2/05 8 M/s.Anu International Vs. M/s.SARU International CC No.2/05