Om Prakash, J. - (1.) This Application under Section 482 Cr.P.C. has been filed with the prayer to quash the summoning order dated 21.09.2007 and non bailable warrants dated 26/27.9.2010 passed by the Additional Chief Judicial Magistrate-III, Gautam Budh Nagar in complaint case no. 858 of 2009, under Sections 379 and 406 IPC. Further prayer has been made to stay the proceedings of the aforesaid complaint case.
(2.) Sri Anurag Khanna, learned Sr. Advocate assisted by Sri Akash Chandra Maurya submits that offences levelled against the applicant in the present matter are not attracted. In fact two companies namely M/s. R. P. Agro Private Limited and M/s. B. S. Oils Private Limited owned by opposite party no. 2 and his wife took loan from the Pradeshiya Industrial & Investment Corporation of U.P. Ltd. (hereinafter referred to as the PICUP) amounting to Rs. 72.50 lakhs and Rs. 62.50 lakhs respectively in the month of March and September, 1989. Both the above named companies were situated at Dadri, district Gautam Budh Nagar. At that time the applicant was working as Incharge of the office of the PICUP at NOIDA. When both the companies did not repay the instalment of the loan amount timely, notices were issued under Section 29 of The State Financial Corporation Act, 1951 (hereinafter referred to as the Act). In the year 1995 lastly on non payment of the loan amount companies were attached and at that time inventories were prepared in respect of both the companies and authorised security agency was deputed to secure the assets of the companies at the place of occurrence.
(3.) Submission of the learned counsel for the applicant is also that In the meantime sale process was started. Opposite party no. 2 approached this Court and direction was issued to the PICUP to settle the dispute on the basis of proposal made by the opposite party no. 2 as One Time Settlement. Since the proposal made by the opposite party no. 2 was not feasible or acceptable, PICUP refused the same. It was further argued that since long time elapsed the purchaser refused to follow the conditions of the bid. Again PICUP published advertisement for auction of the companies. The opposite party no. 2 again approached this Court and specific direction was given for resettlement on the basis of proposal made by the opposite party no. 2. Proposal made by the opposite party no. 2 was again not found feasible and thus the same was rejected. To handover the possession of the assets of the companies notices to the banks who had given loan to the opposite party no. 2 for working capitals were issued and the same were received by the banks. Since no efforts were made to remove the working capitals, possession of the companies were handed over on 22.11.1999 to the purchaser. After taking possession, the purchaser time and again requested the PICUP to insist the bank concerned i.e. Bank of Bikaner and Jaipur to remove the working capitals hypothecated by them. Some of the capital goods were removed but rest were lying as is clear from Annexure No.-7 to the application. Learned counsel for the applicant referring to the annexure no. 8 to the application also argued that this fact is itself clear from this document. Meeting to resolve the dispute was also held between the PICUP, purchaser, concerned bank and the opposite party no. 2 and it was resolved that rest items lying at the site shall be lifted/removed between 4.6.2000 to 11.6.2000. Thus the offence levelled against the applicant regarding theft and breach of trust are based on false facts. Essential ingredients to constitute these offences are lacking. Present complaint against the applicant was filed on 15.12.1999. offence is said to have been committed on 22.11.1999. Nothing is mentioned in the complaint that what specific items were dishonestly taken away by the applicant. Only assertion is made in the complaint that working capitals were being taken away by the applicant on two trucks.;