Decided on July 11,1951

Bangshilal Bhora And Anr. Appellant
Rowtmal Patwari And Anr. Respondents

Referred Judgements :-



Thadani, C.J. - (1.)THIS is an application under the provisions of Section 439, Cri. P.C. seeking to quash a complaint brought by one Kowatmal Patwari against three personaBangshilal Bhora, Anandamal Bhora & Rambahadur Tewariin the Court of the First Class Magistrate at Dhubri.
(2.)THE complaint is in these terms:
The complainant files the complaint on the following allegations:It is submitted that I am the Manager of Fakiragram Rice & Oil Mills. Accused 1 is the proprietor of the firm styled as Lalchand Chaganmal Gulcha at Karimganj, & accused 2 is his employee. In the 1st part of November lust, when accused 2 came to our Mill & gave a proposal to sell the mustard oil of our Mill as our Commission Agent, it was settled by & between both the parties that accused 1 & 2, as our Commission Agents, would sell our mustard oil at the Bazar rate according to our advice, & they would send the sale -proceeds by draft, hundi or postal insurance, & would tend the account of the sale proceeds of the oil at Fakiragram. After the aforesaid arrangement was made by the accused 2 on behalf of deft, 1, we sent 441 tins of mustard oil by Railway Receipt No. 462201 to Karimganj, at the request of accused 2, & accused 1 & 2, on behalf of the Firm of Lalchand Chaganmal Gulcha, took delivery of the said 441 tins of mustari oil & stored it in their godown. On enquiry being made by us as to the Bazar rate of the said mustard oildeft. 2, onbehalf of the firm, informed us that oil was not being sold as there was so proper price, & as there was little demand; accused 2 wrote for the last time on 21 -12 -49. In the meantime, doused 3, as canvasser of our Mill, went to several places to secure order with printed terms. Accused 8 had no other authority except to secure orders & he had no authority to receive money on behalf of our Mill from any one. As no other letter was received from the accused 1 & 2 - witnesses 6 & 7 sent me (sic) to Karimganj on 13 -1 50 to make enquiries about the oil sent at Karimganj, & to ascertain whether there was further demand, Accordingly when I enquired about the oil in the firm of accused 1 & 2, I was told that oil has been sold. I asked them to send the money at Fakiragram by draft, when the accused 1 & 2 gave out that they have paid the money to accused 3. I objected by sayingwhy money has been paid in spice of knowing that accused 3 had no authority to receive payment & I wanted to know at what rate & on which date it (oil) was sold, & when I wanted to see the accounts, they did not show it to me. Thereafter I came back to Fakiragram on 17 -1 -50, It is our belief that accused 1 & 2, in collision with accused 3 & with an evil motive & with a view to make us suffer loss, & in the absence of any instructions from us & contrary to the arrangement, & by committing breach of trust have sold the mustard oil elsewhere & misappropriated the entire sale -proceeds amounting to Rs. 21,000 by guess.

It is humbly prayed warrant may be issued against the accused & the account books of the accused be seized after searching the house of the accused it the accused be duly punished alter taking evidence.

This matter came up on 13 -12.50 before the Division Bench consisting of Ram Labhaya J. & myself when this Court passed the following order: Heard in part. The Magistrate concerned is directed to take evidence on the question of jurisdiction as stated in his order dated 15 -7 -50, & submit the evidence to this Court within one mouth of the receipt of this order & records.

The requisition has been complied with by the learned trying Magistrate.

(3.)IT is the case of the complainant that accused 3 Anandamal Bhora visited the complainant who is the Manager of the Fakiragram Rice & Oil Mills at Fakiragram in the first week of November 1919 & informed the complainant that there was a great demand for mustard oil at Karimganj & that if he oared to sell the oil at Karimganj he would sell if for him as his agent. The complainant apparently agreed & it was arranged between the complainant & accused 2 Anandamal Bhora that the complainant would send the mustard oil to Messrs. Lalchand Saganmal Gulecha at Karimganj, for sale & that accused 2 would remit the sale proceeds by draft, hundi, or postal insurance & also send account of the sale proceeds to the Fakiragram Rice & Oil Mills at Fakiragram.

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