HARI SHANKAR PRASAD, J. - (1.) THIS application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings including order dated 9.2.1999 passed in. C/1 Case No. 67/98, whereby and where -under learned ACJM, Seraikella took cognizance against the petitioners under Sections 120 -B/406/420/506 of the Indian Penal Code.
(2.) FACTS leading to the filing of the application are that the complainant -opposite party No. 2 filed a complaint petition alleging, inter alia, therein that some time in the month of February, 1991 he was introduced to petitioner No. 1, M.P. Registrar, who was then posted as advisor in TISCO and was holding very influential position and the complainant was also supplying different items there as supplier contractor. Petitioner M.P. Registrar again met the complainant in Beldih Club, Jamshedpur and during the talks when petitioner No. 1 came to know that complainant -opposite party No. 2 was also supplying electronic items used in installation of cable TV Net work then petitioner M.P. Registrar took him a bit away and informed him that he owns a firm M/s Binyl Electronics and though he was not the registered owner of the firm but he operated the same in the name of his family members. He informed the complainant -opposite party about his contact with Mr. Russi Modi, the then Chairman and Managing Director of M/s TISCO and that because of his influential position in TISCO he bagged huge contract of installing cable TV Network at Noamundi and at Sukinda in TISCO colonies. Thereafter petitioner M.P. Registrar requested the complainant to supply electronic items and other materials to M/s. Binyl Electronics and informed him that the items, which were required, to be installed under his contractual obligation with TISCO and at the same time he assured him of all help in the matter with TISCO and also assured the fair dealing and prompt payment by M/s Binyl Electronics/Thereafter petitioner Zubin Registrar also met the complainant -opposite party No. 2 at this Adityapur office with his father (petitioner M.P. Registrar) and gave verbal message and insisted the complainant to submit his quotation for supply of materials to M/s Binyl Electronics with re -assurance of prompt payment and after so much insistence the complainant -opposite party submitted his quotation No. 3A/ENO/833, dated 7.10.1991 and in reply the petitioner M.P. Registrar immediately placed orders with complainant -opposite party No. 2 to supply materials worth Rs. 1,25,230.00 vide his order under reference No. MPR/90/91 dated 8.10.1991. A sum of Rs. 32,000.00 was also paid in advance by cheque No. 509955 dated 31.10.1991. The complainant -opposite party No. 2 supplied the materials worth Rs. 1,25,230.00 vide Chalan Nos. 3A/CPL/010 dated 25.11.1991 and 3A/CPL/012 dated 30.12.1991 and the same were received and acknowledged by the petitioners of prior supplying of the materials as per order. A further order No. MPR/95/91 dated 15.11.1991 was placed with the complainant -opposite party to supply materials worth Rs. 63,990.00 with an advance payment of Rs. 48,000.00 by cheque No. 0509966. In this way petitioners paid Rs. 80,000.00 as advance although materials worth Rs. 2,13,525.49 paise had already been supplied by the complainant -opposite party No. 2. The complainant -opposite party No. 2 submitted bills for payments of the balance dues but the petitioners adopted a daily dally tactics by not paying the balance amount and thereafter a sum of Rs. 50,000.00 was paid by cheque No. 302615 dated 25.2.1992. Thereafter further demands were made and repeated reminders were sent to the petitioners but no payment was made and thereafter the complainant -opposite party No. 2 served a legal notice on the petitioners in October, 1994 and accused mediated through common friend to stop legal action by the complainant and paid Rs. 20,000.00 . Thereafter demands were made on several occasions and when no payment of balance amount of Rs. 63,525.43 paise was made then complainant again served a legal notice upon the petitioners on 25.4.1997. Thereafter petitioners again paid a sum of Rs. 5000.00 and thereafter complainant -opposite party No. 2 contacted petitioners for payment of rests of the amount. Thereafter complainant was called to the residence of the petitioners for talks and when he went there then he was abused by petitioners M.P. Registrar and Zubin Registrar and even he was threatened with dire consequences and thereafter complainant -opposite party No. 2 filed a complaint case as aforesaid and SA of the complainant was recorded and an enquiry under Section 202, Cr PC was made and thereafter cognizance in the aforesaid case was taken. Learned counsel appearing for the petitioners submitted that only one witness has been examined in this case and, therefore, on the basis of only one witness cognizance should not have been taken. It was also pointed out that petitioners supplied articles, as per complaint petition, worth Rs. 1,89,000.00 and odd and petitioners have already been paid Rs. 1,55,000.00 as per complaint petition, but on the other hand, complainant -opposite party is demanding payment of Rs. 2,13,535.49 paise. It was also pointed out that case is of a civil nature and just to harass the petitioners the present complaint petition has been lodged as against the petitioners. It was also pointed out that there is no entrustment of the articles and entrustment is one of the main ingredients to constitute an offence under Sec. 406, Indian Penal Code and mere a transaction of the said material cannot amount to an entrustment. It was also pointed out that non -payment of the outstanding bill cannot make out a case of criminal breach of trust as there was no entrustment of any property and that after delivery of the material on the basis of sale on credit the complainant -opposite party did not have any right nor dominion over the poverty. It is also submitted that from the averment made in the complaint petition, it will be clear that petitioners had no intention to cheat the complainant from very beginning and that being so none of the ingredients of the offence under Sec. 420, Indian Penal Code is there. It is also submitted that learned CJM, Seraikella without applying his judicial mind has taken cognizance in the case.
(3.) ON the other hand, a counter affidavit has been filed on behalf of the opposite party No. 2 and from perusal of which it appears that a sum of Rs. 1,30,000.00 has already been paid to the complainant -opposite party No. 2 and a sum of Rs. 83, 523.43 paise is still lying due (Rs. 64,412.20 for materials and Rs. 19,111.23 for sales tax), which has not been paid by the petitioners intentionally to cheat opposite party No. 2 and to cause wrongful loss.;