- (1.) M. K. Mittal, J. Application has been filed for quashing the proceedings including the charge-sheet dated 4. 10. 1999 under sections 406 and 420 IPC in criminal case No-637 of 1999 (new No. 2233 of 2003) State v. Vineet pending in the Court of 1st A. C. J. M. , Varanasi.
(2.) BRIEF facts of the case are that opposite party No. 2 Sri Nath Prasad owner and proprietor of M/s. Orient Printers filed an application under section 156 (3) Cr. P. C. against the applicant and two others alleging that he is a peace loving person and earns his livelihood by doing business. His wife Smt. Premlata Devi is proprietor of M/s. Orient Printers situate in Baradeo Mohalla, P. S. Dashaswamedh, District Varanasi. Accused Vineet Agarwal is proprietor of M/s. Sanghi and Agarwal Capital Services with registered office in first floor Taksal Nadesar, Varanasi. Accused is also a Chartered Accountant and is proprietor of the firm Vineet Agarwal Chartered Accountant Company with office in Sampurnanand Nagar, Sigra Varanasi. Accused met Smt Premlata Devi and proposed for purchase of shares of Unit Trust of India and assured her and made her to believe and also gave a letter No. 139 dated 15. 3. 1993 in connection thereof. Smt. Premlata Devi gave cheques No. 720400 dated 19. 3. 1993 for Rs. 1. 40 lacs and cheque No. 059270 dated 19. 3. 1993 for Rs. 2. 60 lacs to the accused and he acknowledged the receipt by letter No. 742 dated 19. 3. 1993 and 138 dated 15. 3. 1993. Thereafter Smt Premlata gave another cheque dated 12. 7. 1993 for Rs. One lakh and its receipt was acknowledged by letter No. 538 dated 12. 7. 1993 by accused Vineet Agarwal. Accused assured Premlata Devi that he would purchase the shares on her behalf and would handover the same without any delay. But inspite of repeated demands the accused neither gave the shares nor returned the money and thus committed breach of trust and also cheated her and misappropriated the money for his own use and thereby has caused the loss to her. The application was earlier given to Senior Superintendent of Police, Varanasi but when no action was taken this application was filed and the learned Magistrate directed for registration and investigation of the case and after investigation charge sheet has been submitted against the applicant under sections 406 and 420 IPC. Case of the applicant is that report has been lodged against him with incorrect and false allegations. He was the proprietor of firm M/s. Sanghi and Agarwal Capital Services but the same was transferred by transfer deed dated 13. 9. 1993 to Sri Pankaj Agarwal who was working with the applicant with effect from 1. 4. 1993. Applicant has filed" the transfer deed Annexure No. 1. According to applicant alleged amount of Rs. 5 lacs was given through different cheques to his firm and the firm returned the money through the cheques No. 722824 and 722825 in favour of Smt. Premlata for a sum of Rs. 4 lacs and one lakh respectively i. e. total of 5 lacs and the amount of these cheques was also cleared and certificate to that effect has been filed as Annexure No. 3. But Harinath Prasad developed dishonest intention and filed application under section 156 (3) Cr. P. C. alleging that the applicant is owner and proprietor of M/s. Sanghi Agarwal Capital services which carried on the business of broker and shares. The allegations as made in the application under section 156 (3) Cr. P. C. are incorrect and no reference about the payment of Rs. 5 lakhs by the applicant firm through two cheques No. 722824 and 722825 has been made in the application under section 156 (3) Cr. P. C. . It has been further alleged by the applicant that the dispute is of civil nature and the Criminal Courts jurisdiction is not liable to be abused by raising civil dispute. Sri. Nath Prasad and Smt Premlata had raised dispute before the District Consumer Forum, Varanasi and their petitions were dismissed directing them to approach the competent Civil Court. The dispute is between the two firms and not individual and as such the proceedings are liable to be quashed. According to the applicant from the perusal of the report no case is made out against him under sections 405, 406, 420ipc. In the circumstances, the applicant prayed for quashing of the charge-sheet. Opposite party filed counter affidavit and contended that applicant is law knowing person and owner of Chartered Accountancy firm and also Sanghi and Agarwal Capital services and was dealing in purchase and sale of shares units etc. In the consumer forum applicant raised objection that the criminal proceedings were pending. The contention of the applicant that there is no criminal liability is baseless and mischievous. Opposite party filed appeal in the State Forum against the order of District Consumer Forum and the same was allowed. Applicant was sole proprietor f the firm namely Sanghi and Agarwal capital Services and was performing the business of the firm and was also operating the firm Bank Account No. CD 1119 till 10. 8. 1993. It is evident from his own letter dated 10. 8. 1993 addressed to the Branch Manager, Andhra Bank, Varanasi. The alleged transfer deed dated 13. 9. 1993 relating to the transfer of applicant's firm w. e. f, 1. 4. 1993 is fake and bogus document since it was executed on 13. 9. 1993 with retrospective effect. Even the Bank statement shows that the applicant had withdrawn Rs. 9,20,137. 50 between the 3rd and 7th August, 1993. According to the opposite party applicant had demanded payment for the UTI Master Plus units purchased by him vide his confirmation note No. 1889 dated 15. 3. 1993 to Orient Papers and confirmation note No. 1817 dated 12. 7. 1993 to Smt. Prem Lata Devi and in compliance thereof cheques were given by Smt Premlata to the applicant for supply of UTI Units. The applicant also issued the receipt dated 19. 3. 1993 for Rs. 1. 40 lacs, 19. 3. 1993 for Rs. 2. 50 lacs and 12. 7. 1993 for Rs. One lakh. Firsth two receipts were issued in the name of M/s. Orient Papers and third in the name of Smt. Prem Lata Devi. Applicant had given a sum of Rs. 5 lacs on short term loan vide his two cheques No. 78222825 dated 5. 8. 1993 for Rs. One lakh, 722824 dated 5. 5. 1993 for Rs. 4 lakhs in favour of Orient Papers and not in the personal name of the proprietor as alleged in the affidavit. This loan amount was returned back to him within a week i. e. on 12. 5. 1993 by cheque No. 094811 dated 12. 5. 1993 for Rs. One lakh and No. 059291 dated 123. 1993 for Rs. 4 lakhs of M/s. Orient Papers and in favour of M/s. Sanghi and Agarwal Capital Ltd. These cheques were credited in the bank account No. CD 1119 on 12. 5. 1993 as per Bank Certificate dated 28. 1. 1994. The allegations to the contrary are incorrect. The applicant did not return the amount paid through three cheques for purchase of UTI units and neither gave the units and thereby misappropriated the money and caused loss to the opposite parties. The applicant has concealed the fact that the loan amount of Rs. 5 lacs given on 5. 5. 1993 was paid back on 12. 5. 1993 through two cheques. Applicant is solely liable for the offences committed by him and his criminal liability is very much there.
(3.) THE applicant filed rejoinder affidavit and reiterated the pleas as taken by him. In rejoinder affidavit vague allegations have been made regarding the allegations as made in para -8 of the counter affidavit. It has been alleged that the loan was not paid back to the applicant but it was a transaction between two firm and between the Sri Nath Agarwal and Pankaj Agarwal. Heard Sri Yogendra Agarwal, the learned Counsel for the applicant, Sri Faujdar Rai, learned Counsel for the complainant, learned A. G. A. and perused the material on record.;