J.D.JAIN, J. -
(1.)BOTH these revision petitions arise out of the same order dated August 31, 1981 of a Metropolitan Magistrate summoning Paramjit Singh Bedi, Petitioner in Crl. Misc(M) 227/82, and O.P. Trehan, petitioner in Crl. Misc. (M) 34/82, in a complaint case instituted by the respondent Parvinder Singh Monga on April 16, 1980 under Sections 420/468/471/120B and 463 of the Indian Penal Code, against both of them and some other persons. Since common questions of law and fact are involved, this order will dispose both of them.
(2.)THE prosecution case as laid in the complaint succinctly is that Messrs Pam Just was a partnership concern in which the accused Kuldip Singh Bedi and Paramjit Singh Bedi were the partners. The said firm (hereinafter referred to as 'the exporters') was carrying on the business of export of readymade garments etc. The complainant Parvinder Singh Monga was at the relevant time carrying on the business as a clearing, forwarding and shipping sub-agent in the name and style of Messrs Air Lifters which too was a partnership firm comprising him and his mother. The nature of the business carried on by the complainant was to look after clearing, forwarding and shipping of the consignments to be exported as sub-agent and as such, he was serving as a link between the exporters and the cargo agents, recognised by the International Air Travels Association. In December 1976 both the accused, namely, Kuldip Singh Bedi (Since dead) and Paramjit Singh Bedi approached him and represented that they had huge business of export and they were looking for a person who would arrange for the clearance and shipment of their consignments etc. and they assured that they would pay charges for handling the assignments, getting him cleared from the customs department and arranging for their shipment etc., on receipt of duly authenticated GRI form, customs clearance certificate and other relevant documents. Accordingly, the complainant started the work of handling, forwarding, clearing and shipment of various consignments of the exporters. To begin with, they were very prompt in making payment in order to create confidence in the complainant. Gradually, however, they started withholding payments with the result that in due course of time there was accumulation of unpaid charges to the tune of Rs. 63,877.70. He asked the accused No. 1 and 2 to clear all the dues in respect of the consignments sent through him, but they assured him that they would pay all the outstanding bills on his clearing their consignment of 144 parcels weighing about 905 kgs. which was handed over to him in March 1977. Accordingly, the complainant got all those consignments cleared from the customs authorities on April 18, 1977 and got G.R.I. forms duly authenticated at the warehouse of Air India. The goods were then booked for shipping with Iraqi Airways through Ram Lal and Subhash Jain, accused No. 5 and 6, who were partners in M/s All India Travels Service which firm was carrying on business as authorised cargo clearing and forwarding agents. Eventually the goods were transported on April 23, 1977 by Iraqi Airways. He obtained the duplicate and triplicate copies of G.R.I. form duly authenticated by the customs department. He then approached Ram Lal and Subhash Jain accused for being supplied the airway bill. However, he was told that accused No. 1 and 2 had already taken away the original airway bill and, therefore 7th copy of airway bill was handed over to him. Thereupon, he approached accused No. 1 and 2 for payment of the entire accummulated amount of Rs. 64,137.70 to him, but they put him off saying that he need not worry as their financial position was very sound and they had the credit limit of rupees twenty five lacs from the bank. Even, O.P. Trehan had earlier assured that accused No. 1 and 2 were men of sound financial status. However, on the same date viz. April 23, 1977, he wrote a letter to the Punjab National Bank, not to encash the letter of credit established in favour of accused No. 1 and 2 by the foreign bank informing them that the original G.R.I. form i.e. duplicate and triplicate copies and other relevant documents like shipping bill etc. were in his custody and he had a claim against accused No. 1 and 2 to the extent of Rs. 63,877.70. So, he asked the bank not to make payment to accused No. 1 and 2, on the strength of the original airway bill of Iraqi airways only without having the aforesaid documents. He expressed the apprehension that the accused No. 1 and 2 may use unfair means to encash the letter of credit by furnishing false affidavits etc. with regard to the loss of the original papers. Notwithstanding this warning the officials concerned of the authorised bank encashed the letter of credit in favour of accused No. 1and 2. He came to know of the same when a hundi in the sum of Rs. 64,137.70 drawn on Messrs Pam Just was presented by him to the Punjab National Bank, Jhandewalan Branch, on May 19, 1977 and it was returned on May, 1977 to his baners with the remarks "acceptance refused".
Thus, the accusation made is that the accused No. 3 and 4 both of whom are bank officials, caused wrongful loss to the complainant and wrongful gain to accused No. 1 and 2 pursuant to a conspiracy between them despite the fact that accused No. 3 and 4 had been warned that the original documents were in possession of the complainant. As far accused No. 5 and 6 the allegation is that they delivered the original airway bill to accused No. 1 and 2, although the consignment in question had been booked by the complainant for shipment through them and they should have delivered the original airway bill to him. Further, they fabricated the date of shipment as March 9, 1977 so as to facilitate encashment of the letter of credit by showing that the goods had been shipped within the time stipulated in the letter of credit for despatch of the same, although the goods were, in fact, shipped on April 23, 1977. They also helped the accused No. 1 and 2 to encash the letter of credit even though the originals were with the complainant to their knowledge.
(3.)THE complainant Parvinder Singh Monga had even, prior to the institution of the present complaint, filed a complaint on July 28, 1977 against the same accused under Sections 406/420/468/471 and 120-B of the Indian Penal Code. The said complaint was in respect of the self same transact on and embodied almost identical averments of fact. Vide order dated December 16, 1977, the learned Metropolitan Magistrate summoned all the accused holding that there were sufficient grounds to proceed against all of them under Section 406/34 IPC, only.