AMARESHWAR SAHAY, J. - (1.) THE petitioner has prayed for quashing of the order dated 06.04.1998 taking cognizance under Sec. 409 of the Indian Penal Code against the petitioner in C/l Case No. 136 of 1998 and also the entire criminal prosecution against him which was pending before the Judicial Magistrate, Jamshedpur.
(2.) THE opposite party No. 2, Jamshedpur Co -operative House Building Society Ltd. filed a Complaint Case against the Manager, Canara Bank, Safdarganj Development Area, New Delhi before the Chief Judicial Magistrate at Jamshedpur. In short, the allegations in the complaint petition was that the complainant entered into an agreement on 09.09.1992 with M/s. Walia Construction (Builders) of New Delhi for construction of multi -storied buildings at Jamshedpur. It was alleged that the accused executed Bank Guarantee No. 317/ 95, dated 12.12.1995 for Rs. l, 00,000.00 . Bank Guarantee No. 318/95, dated 12.12.1995 for Rs. 2,00,000.00 and Bank Guarantee No. 319/95 dated 12.12.1995 for Rs. 2,00,000.00 in favour of the complainant in lieu of security deposit or in lieu of deduction to be made from the bills of the said M/s. Walia Builders for the fulfilment of the terms and conditions contained in the contract. It is said that the accused intimated to the complainant about the extension of the period of validity of the aforesaid three Bank Guarantee till 10.09.1996 vide their letter dated 11.03.1996. It was further alleged in the complaint petition that the construction of the building was stopped by the aforesaid M/s. Walia Construction (Builders) and then on 2.11.1996. the complainant terminated the contract of said M/s. Walia Construction (Builders). Due to non completion of the construction Job. the complainant is said to have suffered loss to the tune of Rs. 50 lakhs (fifty lakhs) over and above the advance made to them to the tune of Rs. 58 lakhs. It was further alleged in the complainant petition that Canara Dank specifically agreed to guarantee the due recovery of the advanced amount specified in the guarantee bond and the accused also agreed that if the contractor (Walia Builders) fails to utilize the amount covered under the Bank Guarantee by the complainant, the accused undertook to pay the complainant on demand the amount covered in the respective Bank Guarantee. The accused also agreed that they shall not revoke the aforesaid Bank Guarantees during their currency except without the previous consent of the complainant in writing. It is alleged that since the Bank Guarantees were scheduled to expire on 10.06.1997. the complainant lodged their claim to the accused against the aforesaid three Bank Guarantee amounting to Rs. 5.00.000.00 (five lakhs) but the accused by his letter dated 30.08.1997 informed the complainant that since the aforesaid three Bank Guarantees have already expired and accordingly, the complainant was not entitled to invoke those Bank Guarantees.
(3.) ACCORDING to the complainant, the accused was well aware of the fact that M/s. Walia Builders had filed Title (Arbitration) Suit No. 83/96 against the complainant in the Court of Subordinate Judge -I. at Jamshedpur in which the accused was also one of the defendant and a petition for injunction was also filed by M/s. Walia Builders in which the learned Sub -Judge had directed to maintain status quo vide his order dated 07.01.1997 and therefore, the action displayed by the accused in his letter dated 30.08.1997 informing the complainant that the complainant was not entitled to invoke the Bank Guarantees, the same amounted to criminal breach of trust ns the accused deliberately acted in violation of the aforesaid legal contract describing the mode in which such trust was to be discharged.;