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.
(2.) THIS application u/s 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 08.04.2011.
(3.) THE brief facts of this case as transpire from the record are as under: 3.1 A criminal complaint (annexure no. 1) was filed on 08.04.2011 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 30.06.2006 to 01.11.2007, 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. 3.2 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. 3.3 The amount of above sent back articles was adjusted by issuing credit notes. The complainant also returned /sent back articles on 04.12.2007 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 26.02.2008 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. 3.4 The complainant sent a letter dated 07.04.2008, 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 18.02.2011 (annexure no. 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. 3.5 The above referred complaint was registered as Complaint Case No. 84 of 2011. 3.6 Learned Lower Court recorded statements of complainant under section 200 Cr.P.C. and his witnesses u/s 202 Cr.P.C. and summoned the applicant under section 406 and 420 IPC, vide order dated 04.10.2011. A bailable warrant was also issued against the applicant vide order dated 28.02.2012. 3.7 Feeling aggrieved by the above orders, passed by the learned Lower Court, the applicant filed this application under section 482 Cr.P.C. 3.8 Vide order dated 30.03.2012 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.;