Madhumati Mitra, J. - (1.) This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioners praying for quashing of the orders dated 17.05.2017 and 22.06.2017 passed by the Learned Additional Chief Judicial Magistrate, Siliguri, District-Darjeeling, in connection with C.R.No.320 of 2017 under Sections 406/420/120B of the Indian Penal Code pending against the present petitioners. Petitioners have also prayed for quashing of the entire proceedings of said C.R.Case No.320 of 2017.
(2.) In a nutshell the facts of the case are that on 22.02.2016, the present petitioner company viz the Superwave Communication and Infra Solution Private Limited, a company incorporated under Company Act placed their work order for work regarding supply, installation, testing and commissioning of Electrical System for Toll Plaza Work at Lumding Maibong Road Project (NH54E) to be carried out under certain terms and conditions as mentioned in the said work order in favour of the M/s. B. Enterprise. Complainant i.e present opposite party no.2 himself is one of the partners of the said M/s. B. Enterprise. From the said work order dated 22.02.2016, it appears that the said work order was issued with reference to the quotation of M/s. B. Enterprise and LOI, Ref:001/LOI/E1-2016, issued by the accused/company and on the basis of discussion held between the parties. The said work order mentioned the terms of payment and contained a schedule of item-wise rate.
(3.) Complainant has claimed that as per work order the firm had started supplying the materials on and from 17.03.2016 and within a period from 17.03.2016 to 27.06.2016 complainant supplied materials amounting to Rs.1,67,07,802.00/- (Rupees One Crore Sixty Seven Lakh Seven Thousand Eight Hundred and Two). It has been alleged by the complainant that accused instead of paying Rs.20,00,000/- (Rupees Twenty Lakh) as per work order paid only a sum of Rs.10,00,028.62/- (Rupees Ten Lakh and Twenty Eight and Sixty Two paise) on 03.03.2016, in violation of the terms of payment of the work order. Complainant also has claimed that it supplied materials amounting to Rs.1,67,07,802/- (Rupees One Crore Sixty Seven Lakh Seven Thousand Eight Hundred and Two) and accused paid only Rs.41,00,000/- (Rupees Forty One Lakhs) instead of paying 75% in terms of the work order. Complainant has also claimed that the complainant also supplied materials valued at Rs.3,44,000/- (Rupees Three Lakh Forty Four Thousand) and Rs.1,70,51,802/- (Rupees One Crore Seventy Lakh Fifty One Thousand Eight Hundred Two) was due and payable to the firm of the complainant. It has also been alleged by the complainant that the accused petitioners in violation of the work order deducted 10% performance Bank guarantee and paid Rs.27,28,000.62/- (Rupees Twenty Seven Lakh Twenty Eight and Sixty Two Paise). Complainant has stated that a joint meeting held on 26th August, 2016 in presence of one Mujib Ansari of Simplex Infra Structure Limited and Complainant was compelled to agree that an amount at the rate of 7.5% would be held from each invoice raised by the complainant as performance Bank guarantee including 5% of Security deposit. It was also agreed that said held amount would be released on completion of 12 months from the date of commissioning and hand over of the project to Simplex Insfra Structure Ltd. and payment would be made within 30 to 40 days from the date of delivery at site inspection and acceptance of material at site by the authorized person of the accused member. It has been alleged by the complainant that the accused received payment more than the actual material supplied by the complainant and accused persons did not pay the amount to the firm of the complainant without any reason. It is the specific allegation of the complainant that from the very inception accused persons had intention of cheating and accused persons making conspiracy with each other have committed the offence of cheating and misappropriated an amount of Rs.83,23,945.26/- (Rupees Eighty Three Lakhs Twenty Three Thousand Nine Hundred Forty Five and Twenty Six Paise).;