S. B. SINHA, J.

( 1 ) LEAVE granted.

( 2 ) APPELLANT was a partner of a firm known as m/s Saraswati Exports. He is also Director of a Company known as 'saraswati Exim Pvt. Ltd. ' (for short, "the company" ).

( 3 ) M/s S. N. Kapur Exports is a firm registered under the Indian Partnership Act, 1932 (for short, "firm" ). The Complainant Vikram kapoor (Respondent No. 2 herein) is a partner thereof. The firm was engaged in manufacturing, selling and export of carpets, mats, etc. It'developed various types of hand knotted new designs of carpets and acquired special skill therein.

( 4 ) INDISPUTABLY, the two firms entered into a contract on or about 1. 4. 2001 in terms whereof, inter alia, the firm agreed to help and assist the appellant with regard to production, i. e. , designing, colouring, dyeing, finishing, etc. The firm also agreed to provide knowledge and know-how for the carpet production by the appellant for making their products readily saleable and more-marketable. The firm for the said purpose was to receive 10% commission on the invoice value of each and every invoice and total sales made directly or indirectly by the firm. Some of the clauses of the said agreement are as under:

"9. That the SECOND PARTY shall have an office provided by the FIRST PARTY to carry out supervising of all the work of designing etc. and auditing/checking of account records/books. 14. That the SECOND PARTY shall have right to auditing, checking of accounts books/records etc. , through their auditor at any time and the FIRST PARTY will cooperate in this regard. 15. That if the sum due on account of 10% commission is not paid promptly as soon as the sum due becomes Rs. 3 Lacs, the second PARTY shall on the strength of this agreement alone, file a law suit for the recovery of dues and bringing a stay from the law court of the business and its total activity till the full payment has been made along with 15% interest for the period of delay and full cost of law suit has been cleared and paid in full by the FIRST party. 23. That the FIRST PARTY has an assurance from SECOND PARTY that sales (export sales of Hand Knotted carpet) will be done with the help of second PARTY 24. That the FIRST PARTY is singly taking up to produce only Hand Knotted Carpets without any compromise in execution of quality. Any defective carpets produced by the FIRST PARTY shall be entirely FIRST party's responsibilities. 25. That neither FIRST PARTY nor second PARTY can enter into such agreement with any one else. "

( 5 ) THE said agreement continued till 31. 3. 2003. Indisputably again with effect from 1. 4. 2003, another agreement has been entered into by and between the parties thereto whereby and whereunder it was agreed that the appellant would pay a sum of rs. 17 lakhs per month to the firm for a period of two years. It is furthermore not in dispute that whereas the firm claims a sum of rs. 4,49,85,581/- towards commission payable to it towards export but only a sum of Rs. 3,21,06,910/- has been paid.

( 6 ) INTER alia alleging that the appellant herein has committed the offences of criminal breach of trust and/or of cheating and forgery, on the premise that he had made sale of about Rs. 9 crores in the year 2002-2003 through a sister concern wherefor no commission was paid although the technical know-how was made available by the firm, a complaint petition was filed in the court of Judicial Magistrate No. 22, Jaipur City, Jaipur on or about 13. 08. 2004.

( 8 ) ANALYZING the terms of the contract, it was stated that the complainant did not raise any protest from time to time with regard to the purported breaches thereof on the part of the appellant and in any event, the same gives rise to a civil dispute.

( 9 ) IT was, however, found that different invoices were presented to the bank showing different amounts and quantities vis-a-vis the firm, stating:

". . . Thus, partners of Saraswati Export by showing the amount of commission in the invoices falsely and wrongly and by de