- (1.) BOTH the writ applications were heard together and are being disposed of by the common order, as they arise out of same case and the issues involved are also the same.
(2.) THE petitioners of both cases have invoked the extraordinary jurisdiction of this Court, as enshrined under Article 226 of the Constitution of India, for quashing of the First Information Report of Doranda (Argora) P.S. Case No. 69 of 2009 (G.R. No. 858 of 2009) instituted under Sections 467, 468, 471, 406, 420 and 120 -B of the Indian Penal Code against the petitioners and others. Before adverting to the submissions made on behalf of the parties, the facts giving rise these applications need to be taken notice of. It appears that the informant - Samuel Anand Ekka (respondent No. 4) lodged a First Information Report stating therein that he being a labour contractor used to purchase the cement from Sudip Sanyal @ Benu, one of the accused (not the petitioner in these cases), as a result of which, he became quite intimate to him. In course of time, Sudip Sanyal @ Benu insisted on the informant to go for having a cement agency of M/s. Lafarge India Private Ltd. On being induced, when the informant agreed to his proposal, the accused -Sudip Sanyal @ Benu asked him to provide two blank cheques and one letter head with signatures and a cheque of Rs. 50,000/ -, which were given to Sudip Sanyal @ Benu and then an agency was opened at Simdega in the name and Style as Ekka Cement Centre. Thereafter, accused -Sudip Sanyal @ Benu provided cement twice through his vehicle. Meanwhile, accused -Sudip Sanyal @ Benu also managed a job for the father of the informant -respondent No. 4 and paid Rs. 3,000/ - but for a month only. In course of time, Sudip Sanyal @ Benu communicated the informant that his agency has been terminated but all of a sudden, he received a notice on 30.10.2006 given by M/s. Lafarge India Private Ltd. intimating there in that a cheque, worth Rs. 5,76,102/ - issued by him, has bounced back. Then, the informant could realize that accused -Sudip Sanyal @ Benu in connivance with Prakash Chand Agarwal @ Prakash Agarwal, Ajay Kumar Agrawal and Sudhir Kumar Agrawal (petitioners in W.P. (Cr.) No.315 of 2009) and also with the officials of M/s. Lafarge India Private Ltd., such as Senior Vice President (Sales) (petitioner No. 1), Assistant Vice President (Sales) (petitioner No. 2), Assistant Sales Manager (petitioner No. 3) and M/s. Lafarge India Private Ltd. -petitioner No. 4 [all petitioners in W.P. (Cr.) No. 288 of 2009] defrauded and cheated him (informant) of Rs. 5,76,102/ -. On getting the said notice, the informant contacted the accused -Sudip Sanyal @ Benu who assured him that everything would be set at right but immediately thereafter he received a summon issued by the Chief Metropolitan Magistrate, Kolkata in connection with Complaint Case No. C -2091/2007. Thereupon, when the informant met with the accused -Sudip Sanyal @ Benu, he confessed before him that he used to take the delivery of cement in the name of Ekka Cement Centre and to sell it in Ranchi itself and that he had also opened bank account at Jharkhand Gramin Bank, Ranchi and also at Bank of Maharashtra, Ranchi Branch in the name of Ekka Cement Centre. These acts were done by him by impersonating himself as informant and in this manner, all the accused persons cheated the informant and got him falsely implicated in a case lodged under the N.I. Act.
(3.) LEARNED counsel appearing for the petitioners in W.P. (Cr.) No. 315 of 2009 submitted that petitioner Nos. 2 and 3, both sons of petitioner No. 1, do business under the name and style of PASA (India) Private Ltd. as a Clearing and Forwarding Agent (C.F.A.) of M/s. Lafarge India Private Ltd. and under the terms and conditions agreed between the petitioner's Company and M/s. Lafarge India Private Ltd., these petitioners had nothing to do in the matter of appointment of any dealer or sale of the cement manufactured by M/s. Lafarge India Private Ltd., rather under the agreement, when the cement is transferred to the warehouse on stock transfer basis under railway receipt or lorry receipt, petitioner Nos. 2 and 3, being Clearing and Forwarding Agents, get the delivery of the cement and bring it to the warehouse of the Company. Thereafter, as per guide -lines of the Company. the petitioners deliver the cement to the dealers, buyers or other warehouse of the Company by getting the price thereof by cheque drawn in favour of M/s. Lafarge India Private Ltd. Thus, the Company, namely, PASA (India) Private Ltd. does not have any role to play in the matter of appointment of the stockist or dealer of M/s. Lafarge India Private Ltd. nor it does get payment on delivering the cement to the dealers or any other buyers and under these situations, the petitioners cannot be said to have misappropriated the money or cheated the informant -respondent No. 4 or have committed offence of forgery. Moreover, there is no such allegation also, rather it has simply been alleged that the main accused in connivance with these petitioners and officials of M/s. Lafarge India Private Ltd. committed offences, but that is a bald statement, as under the procedure of sale of cement, as indicated above, the question of committing aforesaid offences does not arise. Moreover, nothing has been alleged about any omission or commission of act or acts showing their agreements with the main accused to commit the offence as alleged and as such, the prosecution of the petitioners is nothing but an abuse of the process of law which gets established from the fact that when a cheque, issued by the informant to M/s. Lafarge India Private Ltd. bounced back, prosecution has been lodged under Section 138 of the N.I. Act and in order to take defence these allegations have been levelled and, therefore, the prosecution undoubtedly is tainted with malice. Thus, on this account also, First Information Report is fit to be quashed.;