PALOK Basu, J. - (1.) Both the aforesaid applications arise out of the com plaint filed by the opposite party No. 2 Sudhir Chopra numbered as complaint Case No. 2617/89 under Section 420/406/120 -B IPC. of the Court of Chief Judicial Magistrate, Moradabad, against the 11 accused, the applicant V. Kothari and M/s. Sunds Defibrator AB, being accused Nos. 1 and 11 respecti vely. In both the cases State of U. P. and Sudhir Chopra are opposite parties No. 1 and 2 respectively. Since these two applications relate to the same complaint case, they were heard together and are being disposed of by this judgment.
(2.) SUDHIR Chopra claimed himself to be the Vice -President of a Company known as Best Boards Limited having its factory at Gajraula, Police Station Gajraula District Moradabad, U. P. The allegations in the complaint in short are that M/s. Sunds Defibrator AB is a company with its registered office at Sweden. This Company works in India through its representatives such as accused Nos. 4 to 10. There is another Company arrayed as accused No. 3 while accused Nos. 1 and 2 are its executives and managers. An agreement was entered into between the complainant Company with the accused who are in league with each other for establishing a Bagasse Bassed Medium Density Particle Board Plant, Laminating Plant and Thermo -Oil Plant, the cost of which project runs into several crores of rupees. The accused were responsible lor supply of equipment and materials according to specifications and for that purpose executed bank guarantees to gain confidence of the complainant company. On the said assurance the complainant company made payments towards costs of the machinery, equipments and materials by letters of credit opened in the bank. According to the terms of the contract it was the responsibility of the accused persons to erect and fix all the machinery, equip ment and materials according to the guaranteed performance parameters stipulated in the contract. Due to default of the accused persons, the plant could not commence in December, 1987 as per the contract because several defects were detected in the equipments and materials supplied by the accused, for which various letters were written. The plant could be completed with difficulty on 12 -1 -1989 but it could not function upto the guaranteed parame ters and various defects and deficiencies were detected in the performance of the plant. In February 1989 one Mr. Boll of M/s. Panndorf of West Germany came to the Project site and informed that the Dryer which had been manu factured by their firm, was of a different specification and lessor efficiency than that contracted by the accused and it was not possible for the plant to achieve the guaranteed performance parameters since the equipments supplied by the accused persons was not of contracted quality, specification and efficiency. The complaint then got the other equipment also examined and found that they were sub -standard and not according to specifications By letter dated 15 - 2 -89 the accused persons were asked to remove and replace the deficient equipments. Several meetings were held, letters and telexes were sent but the accused did not pay any heed. The accused knew that the equipment and materials were not of the stipulated specifications and efficiency and were sub standard. They knew that they were not supplying the equipment and materials as promised by them. During the course of erection, fixation machanical tests etc. the accused persons were entrusted with various spare -parts belonging to the complaint's company on the specific understanding that the accused persons would return them or pay costs to the complainant company but they have refused to do so. The accused have unilaterally refused to work any further vide their letter dated 28 -3 -1989. The intention of the accused persons was dishonest and was designed to cause wrongful loss to the com plainant company and wrongful gain to themselves. This dishonest intention was comouflaged by them and the complainant company was beguiled by their statements and assurances consideiing them to be gentlemen. Had the complainant known their dishonest intention, he would not have paid them large sums of money at all. The accused had cheated the complainant company and have committed criminal breach of trust in respect of equipments and materials worth crores of rupees and have committed offences punishable under Sections 420/406/120 -B of the I. P. C. In support of the complaint allegations the complainant examined himself under Section 200, Cr. P. C. on 2 -5 -89 and examined Wing -Com -roander Rajendra Kumar Chaudhary as his witness under Section 202 Cr. P. C. on 4 -5 -89. The Chief Judicial Magistrate Moradabad has by his reasoned order dated 2y -5 -89 summoned all the eleven accused and later on bailable warrants by way of process was issued by him. Felt aggrieved by the summon ing order accused No. 1 and accused No. 11 have filed the aforesaid two Criminal Misc. Applications, provings that the complaint, the summoning order and the further proceedings in the said complaint case, be quashed. In Criminal Misc. Application No. 6549 of 1989 counter -affidavit has been filed by Sudhir Chopra seriously contesting the allegations made in the affidavit in support of the application and he has made an application praying that the interim order whereby the proceedings before the Chief Judicial Magistrate were stayed, be vacated, the application be decided at the earliest and it should be dismissed. Rejoinder affidavit has also'been filed on behalf of V. Kothari. U has been mentioned in the array of the parties that Mr. V. Kothari and others are petitioners but no details of any other accused petitioner has been given, it follows that the former application is, therefore, by V, Kothari alone and is treated as such.
(3.) SRI P. N. Duda, Senior Advocate appeared on behalf of the appli cant in both the cases. SRI Devendra Nath Dwivedi, Advocate, has appeared on behalf of complainant Sudhir Chopra. The State of U. P. has been represent ed by SRI Surendra Singh, learned Assistant Government Advocate who said that from the allegations made in the complaint no case for quashing thereof has been made out. The primary point convassed by Sri Duda was that the complaint case should not proceed before a Magistrate as intricate question of Civil Law of accounting, of examining specifications of scientific and engineering datas specifications are involved. It was argued by him that according to the tripartite agreement any dispute between: the complaint and the accused had to be settled only by referenceto arbitration. In this connection it was pointed out that the matter has in fact been taken to the International Chamber of Commerce, Paris. It was further argued that Civil Suit No. 402/1989 has been filed by the complainant in the court of the Civil Judge Moradabad, who has stayed the proceedings therein because of the pendency of the Arbitration proceedings in pan's. A true copy of the order has been filed alongwith rejoinder affidavit. On the strength of these two proceedings and also relying upon the terms of the agreement Sri Duda argued that the Criminal complaint amounts to an abuse of the process of the court and should be quashed.;