ANURAG AGARWAL Vs. STATE OF A P ANOTHER
LAWS(APH)-2019-3-121
HIGH COURT OF ANDHRA PRADESH
Decided on March 28,2019

ANURAG AGARWAL Appellant
VERSUS
State Of A P Another Respondents


Referred Judgements :-

SUNIL BHARTI MITTAL VS. CENTRAL BUREAU OF INVESTIGATION [REFERRED TO]


JUDGEMENT

B. Siva Sankara Rao, J. - (1.)Petitioners in Crl.P.No.6672 of 2013 are A1 to A3, A5 and A6 and petitioner in Crl.P.No.6181 of 2013 is A4 respectively in C.C.No.1121 of 2013 pending on the file of IX Metropolitan Magistrate, Kukatpally at Miyapur, Cyberabad.
(2.)The 2nd respondent-Hetro Drugs Ltd., is the defacto-complainant. It is in fact a private complaint filed by 2nd respondent on 9.4.2012 against six accused of whom A1 is M/s Agarwal Foundaries Pvt. Ltd., represented by its Director Pramod Kumar Agarwal who is no other than A2, A3 is Prathik Kunchal, A4-Anurag Agarwal and A5-Goutham Ganeriwal are son and brother respectively of A2 and A6 is Muthya Viay Kumar. In the private complaint, the offences alleged are under Sections 406, 420, 120-B IPC and the alleged occurrence was on 19.11.2011 and thereafter within the jurisdiction of Sanathnagar Police Station, Cyberabad.
(3.)The contents of the private complaint in registration of crime supra from what the learned Magistrate referred to police under Section 156(3) Cr.P.C. (in mentioning in the F.I.R. dated 11.4.2012 at paragraph 12 of received through IX Metropolitan Magistrate, Miyapur, the complaint to register the crime under Section 156(3) Cr.P.C) that the complainant is having SEZ unit in Polepalli village of Mahabubnagar district and to construct the building, complainant required iron and as A1 company was trading in iron, whose Directors are A2, A3, A4, A5 conducted transactions on behalf of A1 and A6 is the General Manager, Project Sales of A1, complainant used to place purchase orders and accused was sending iron through invoices and described six invoices Nos.2093, 2094 dated 16.9.2010, 3538 dated 21.10.2010, 3550 dated 22.10.2010, 3626 dated 26.10.2010 and 3794 dated 3.11.2010 pursuant to the purchase orders which are for the respective amounts to a total of Rs.42,63,395/- and while so, the Deputy Commissioner of Customs, APIIC SEZ informed that for the purpose of claiming DEPB (Duty Exemption Pass Book) benefits, complainant has to procure material from DTA (Domestic Tariff Area) supplier by making payments from foreign currency account and complainant accordingly informed to the accused about the problem and requested to return payments made in Indian rupees and accept payment in US Dollars from the foreign currency account and accused informed to first deposit payment in US dollars and subsequently within one day they will issue cheque for exact amount in Indian rupees and accused also furnished proforma invoices under US Dollar by mentioning the value of the invoice in US Dollars. It is further averred that complainant remitted 94,708.57 US Dollars to the account of A1 on 19.11.2011 and after transferring the amount, complainant informed to accused about the deposit of the amount into their account and requested to issue cheque for Rs.42,63,395/- which was paid earlier and accused informed that they will arrange the amount immediately, but they dragged the matter day by day by saying one reason or other and avoided calls made by the complainant and finally when complainant insisted the accused for issue of cheque, accused declared that they will not return the amount and claimed that for the previous transactions, complainant paid the amount with certain delay, therefore they calculated interest and further informed that after adjusting interest, they will return the balance amount and accused furnished statement to the effect that accused are going to withhold Rs.33,55,447/- and in case complainant accepts about withholding, they will return the balance amount. It is further averred that there is no understanding between the complainant and accused about payment of interest in case delayed payments and accused has no lien power to withhold the amount of their company, accused is not disputing about payment of amount to the complainant after receiving payments in US Dollars from foreign currency account and said amount has been made for specific purpose that after receiving US Dollars, accused has to issue cheque in Indian currency, but taking advantage of possession of amount entrusted by complainant, accused have misappropriated and committed breach of trust and cheated the complainant. It is further averred that all accused having conspired together with an intention to cheat the complainant, induced the complainant to deposit the amount first in US Dollars by promising that within one day they will issue cheque and made the complainant company to transfer the amount of US Dollars supra, they misappropriated making false plea and committed the offences and therefore liable.
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