Shashi Kant, J. - (1.) HEARD Sri C.K. Parekh, learned counsel for the applicant, learned AGA for the State of U.P. and Sri Ramanuj Tripathi, learned counsel for opposite party No. 2. This application under Section 482 Criminal Procedure Code, 1973 (in short 'Cr.P.C.') has been filed for quashing of complaint case No. 84 of 2010, under Section 406 and 420 Indian Penal Code, 1860 (in short IPC) pending in the Court of 9th Additional Chief Judicial Magistrate, Varanasi as well as quashing of the complaint dated 8.4.2011.
(2.) THE brief facts of this case as transpire from the record are as under: 2.1 A criminal complaint (Annexure 1) was filed on 8.4.2011 by O.P. No. 2 - Sri Balak Kumar Kashyap (hereinafter referred to as 'complainant') in the Court of Additional Chief Judicial Magistrate, Varanasi under Section 420 and 406 of I.P.C., alleging therein that there was business dealing from 30.6.2006 to 1.11.2007, between the accused applicant (hereinafter referred to as 'applicant') and O.P. No. 2. During that period there was a firm Surya Hydraulics Private Limited which was manufacturing Submersible Pump, Mono Block Pump, Selvel Pump etc. 2.2 In past the complainant used to return back defective or unserviceable articles and M/s. Surya Hydraulics Private Limited used to acknowledge, on receiving back those articles. 2.3 The amount of above sent back articles was adjusted by issuing credit notes. The complainant also returned/sent back articles on 4.12.2007 through Challan No. 406/Bilty No. 989 dated 4.12.2007 of Rs. 84,367/ -. He again sent on 1.12.2008 Bilty No. 1321/Challan No. 411 of Rs. 90,490/ - and Bilty No. 1233/Challan No. 412 of Rs. 26,997 and lastly on 26.2.2008 article of Rs. 48,640/ - were returned through Bilty No. 15654 Challan No. 417 but accused persons neither acknowledged receipt of said return back articles nor issued any credit note. As such amount of Rs. 8,32,086/ - as value of the returned/back articles is due against the accused persons. 2.4 The complainant sent a letter dated 7.4.2008, with request to issue credit note of Rs. 2,59,274/ - against returned/back articles but neither credit notes were given nor returned back articles were exchanged, nor their price was paid or adjusted. The complainant made personal contacts to the accused persons on various dates but they gave only false assurances, due to that complainant sent a legal notice dated 18.2.2011 (Annexure 2) to the accused persons, for delivery of goods against returned/back articles or to make payment of their price otherwise a criminal case has to be filed against them but the accused persons refused to take notice. Having no other option the above referred complaint was filed against accused persons. 2.5 The above referred complaint was registered as Complaint Case No. 84 of 2011. 2.6 Learned Lower Court recorded statements of complainant under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. and summoned the applicant under Section 406 and 420 IPC, vide order dated 4.10.2011. A boilable warrant was also issued against the applicant vide order dated 28.2.2012. 2.7 Feeling aggrieved by the above orders, passed by the learned Lower Court, the applicant filed this application under Section 482 Cr.P.C. 2.8 Vide order dated 30.3.2012 the matter was referred to Mediation Center of this Court and proceedings of the learned Court below was stayed. Subsequently, it is informed at the Bar that mediation could not succeed. I have considered the rival arguments of the learned counsel for parties and perused the record.
(3.) SRI C.K. Parikh, learned counsel for the applicant argued that: 4.1 The complainant did not mention in the complaint or in the documents or in the statements that it is the company with whom, he dealt with. Individual were Directors and not the Proprietors. 4.2 The complainant intentionally suppressed and did not file the ledger account duly audited by Chartered Accountant for the total business conducted by the complainant with the applicant company. He avoided to file his Bank statements because that material was supplied on credit and no advance payment was received. 4.3 The credit notes were issued to Balak Ram's Firm. On the other hand there are outstanding payment against Balak Ram's Firm. The impugned amount of credit note was deducted from outstanding balance. Whatsoever the goods were received back, the credit notes issued for them. The applicant's organization did not provide credit note for the goods received back out of warranty period. The goods received beyond the warranty period could not be given credit note. However no such goods were received back as alleged. 4.4 The complainant did not produce or enclose the alleged credit notes dated 23.4.2007 and 31.3.2007. These credit notes show that the payment of Rs. 17,32,635 was not made by the complainant. It confirms that payment had never been made by the complainant in advance. 4.5 In a private limited company, Directors cannot be impleaded as a party by name. The company neither impleaded in the complaint nor made accused. There are inherent errors in the complaint and the proceedings. 4.6 The challan No. 437 was issued in name of M/s. Surya Service Centre, Varanasi. It was not sent to M/s. Surya Hydraulics Private Limited Agra as mentioned in other challan such as builty GR No. 15654 dated 26.2.2008. 4.7 It is not disclosed by the complainant that M/s. Surya Hydraulics Private Limited is firm or company. It is also not disclosed that who are dealing on behalf of the said firm or company with complainant. In absence of allegations that applicant was incharge and dealing directly with the complainant, no offence at all -is made out against the applicant. 4.8 There is discrepancy of dates in four challans as well as their concerning bilty. For example challan No. 406 is dated 4.12.2007. Its corresponding bilty number is 989 which is also dated 4.12.2007. However there is no receiving or delivery of said items to M/s. Surya Hydraulics Private Limited. No receiving is given by accused applicant. Hence there is presumption that goods shown in the challan No. 406 and bilty No. 989 dated 4.12.2007 had never been delivered to the accused or received by the accused. 4.9 To buttress his arguments learned counsel for applicant placed reliance on following decisions: State of Gujrat v. Jaswant Lal Nathala, : AIR 1968 SC 700; Madhav Rao Jiwaji Rao Schindia and others v. Sambhaji Rao Chandraji Rao Angre and others, : AIR 1988 SC 709; Central Bureau of Investigation SPE, SIU (X) New Delhi v. Duncans Agro Industries Ltd. Culcutta, : AIR 1996 SC 2452; G.V. Rao v. L.H.V. Prasad and others, : AIR 2000 SC 2474; Hridaya Ranjan P.D. Verma and others v. State of Bihar and another, : (2000) 4 SCC 168; Alpic Finance Ltd. v. P. Sadasivan and another, : AIR 2001 SC 1226; S.W. Palanitkar and others v. State of Bihar and another, : AIR 2001 SC 2960; Uma Shankar Gopalika v. State of Bihar and another, : (2005) 10 SCC 336; Devender Kumar Singla v. Baldev Krishan Singla, : (2005) 9 SCC 15; Murari Lal Oupta v. Gopi Singh, : (2005) 13 SCC 699; Anil Mahqjan v. Bhor Industries Ltd. and another, : (2005) 10 SCC 228; Onkar Nath Mishra and others v. State (NCT of Delhi) and another, : (2008) 2 SCC 561; Neelu Chopra and another v. Bharti, : (2009) 10 SCC 184; Paramjeet Batra v. State of Uttrakhand and others, : (2013) 11 SCC 673; Arun Bhandari v. State of U.P. and others, : (2013) 2 SCC 801; G. Sagar Suri and another v. State of U.P. and others, : (2000) 2 SCC 636 and M/s. Rohit Stationary Centre (P) Ltd. and others v. State of U.P. and another, Application under Section 482 No. 4131 of 2004, decided on 23.12.2014.;