- (1.) THE petitioner, an Assistant Manager of M/s. Sunlit Enterprises, has challenged the order dated 28.7.2008, taking cognizance of the offence under Sections 420 and 120 -B/34, IPC against him on the basis of the complaint petition, filed by the O.P. No. 2 Divya Singh, mainly on three grounds : (i) Even if the allegation made in the complaint petition are taken to be true no criminal offence at all is made out against him. (ii) He was not the proprietor of the Firm Sunlit Enterprises rather he was only an Assistant Manager and whatever allegations has been made in the complaint petition are against the proprietor of the Company. (iii) Lastly, that the allegations made in the complaint petition only make out a case of civil nature since the dispute between the parties arose out of a contract.
(2.) IN support of his submissions, Mr. Prashant Pallav, learned counsel for the petitioner has relied on a decision of the Supreme Court in the case of "Sharon Michael and others V/s. State of Tamil Nadu and another, reported in (2009) 3 SCC 375". On the other hand, Mr. Rohit Ranjan Prasad, learned counsel appearing for O.P. No. 2, i.e. the complainant by inviting my attention to the allegations made in the complaint petition (Anexure -1) has submitted that the petitioner, who was an Assistant Manager of Sunlit Enterprises, which was owned by his own brother namely Nilendu Chakraborty and it was this petitioner, who represented the Sunlit Enterprises, met O.P. No. 2 with dishonest intention and induced her to purchase Generator from them as they were providing the Generator at lower price than the market price and he assured that the Sunlit Enterprises was the dealer of Kirlosker Company, which used to manufacture Generator Sets. It has specifically been alleged in the complaint petition that it was this petitioner, who assured and promised the complainant that on payment of Rs. 5,65,000/ - a Generator Set of 82.5 KVA sound proof would be supplied within 30 days of payment and, accordingly, the aforesaid amount of Rs. 5,65,000/ - was paid to the Sunlit Enterprises by the complainant on 23.3.2007, but the Generator Set was not supplied in spite of receiving full payment on, one pretext or the other.
(3.) IT is also submitted that the petitioner misrepresented that his Company was the authorized dealer of Kirlosker Company but in fact, their dealership was already cancelled and, therefore, it is apparent that it was this petitioner, who misrepresented and induced the complainant to pay Rs.;