PANKAJ NAQVI,J. - (1.) Heard Sri Dinesh Varun, learned counsel for the applicant, Sri Sapan Kumar Singh, learned counsel for O.P. No.2 and the learned A.G.A.
(2.) This application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Complaint Case No.635/2008, under Sections 417/419/420/406 IPC, P.S. Cantt., Gorakhpur, pending in the court of Judicial Magistrate, Court No.3, Gorakhpur.
(3.) The O.P. No.2 filed the above complaint against the applicant, alleging that the complainant carries business as Shiva Enterprises, Azad Chowk, Rustampur, Shivpur Colony, Gorakhpur; "Natures Essence" is a New Delhi-based company, whose cosmetic products are distributed in the State by "Legend Marketing Enterprises, Lucknow as a super distributor, i.e., the applicant, retail distribution is performed by Narendra Pratap Mishra, an authorised representative of the Natures Essence Company. The applicant entered into a contract with the complainant/O.P. No.2 in which the former was to sell the product of the Natures Essence to the complainant. The complainant as per the agreed terms and conditions, handed over a blank cheque no.01401274 (Account no.9753) as security and Rs.15,000/- as D.D No.798801, as advance payment, resulted in the supplies of the product to the complainant. It was alleged that whenever bills were raised by the applicant/super distributor, the complainant used to ensure timely payments but on 7.8.2007, it was brought to the notice through communication that complainant had made purchases from applicant to the tune of Rs.272599/-, out of which cheque/DD/cash payments were made only to the tune of Rs.2,56,834/-, i.e., an amount of Rs.15765/- was outstanding against the applicant. By letter dated 7.8.2007, it was intimated to the applicant that after discount and rate difference and other adjustments, Rs.35743/- is outstanding against him, a sum of Rs.24978/- was due to the complainant, applicants were repeatedly addressed for payment of the same, but there was no response. The complainant also intimated the aforesaid fact to the General Manager of the Natures Essence on 7.8.2007, but again of no consequence. In December, 2007, the applicant is alleged to have intimated the complainant that some time be granted to him to wipe off the out standings, prior to this the complainant had requested the applicant to either pay Rs.24978/- or goods worth the same be tendered or in the alternative the blank cheques and the DD be handed over to him. But as neither the blank cheque nor the DD nor the out standings of Rs.24978/- was paid, on the contrary, it was refused, same was misappropriated with an oblique motive, the complaint came to be filed on 24.5.2008.;