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2008 Supreme(AP) 156
IN THE HIGH COURT OF JUDICATURE, KARNATAKA AT
BANGALORE
N. ANANDA, J.
M/s. REPL Engineering Ltd. and others - Appellant
Vs.
ICDS Ltd. rep. by its G.P.A. Holder and another - Respondent
Cri. P. No. 4510 of 2005
Decided on 25-2-2008.
Mr. G. Kumar, for Mis. Law Firm, Counsel for Petitioners.
Mr. Udaya Holla, Sr. Counsel Hanumantharayappa, HCGP, Counsel for Respondents.
Headnote:
Indian Penal Code - Section 34 – Quash of Proceeding - Petitioners arraigned as accused Nos. 1 to 5 in C.C. No. 128/2002, pending trial for offences punishable under Ss. 406, 409 and 420 of IPC r/w Section 34 of IPC on the file of Principal Civil Judge (Sr. On.), have filed this petition to quash proceedings pending therein - The 1 respondent is a registered Financial Institution engaged in extending credit to various Industrial units. It is head office is situated at Manipal. During the year 1995, I respondent imported six wind operated electricity generators bearing Nos. 3265542, 3265543,3265544,3265547,3265548and 3265549 from Denmark. Petitioner NO.1 M/s. REPL Engineering Limited is represented through, its Chairman and Managing Director, Petitioners-2 to 4 are Directors and Petitioner NO.5 is the Company Secretary – Held, the statement of one C.W.8 Sudeerpete, I find that at relevant point of time he was working as Senior Executive of RP.E.L. Petitioner NO.1 was the Managing Director and other petitioners were the Directors of I petitioner-RP.E.L. He has stated that transfer of generators took place at the instance of petitioners-2 to 4. He has made a categorical statement that petitioners-2 to 4 were in charge of the affairs of RP.E.L. Company, without their consent no transaction used to take place. HE has also stated that five generators were sold contrary to terms of lease agreement and one generator could not be traced by Investigating Officer. Therefore, the submissions made by learned counsel for petitioners that petitioners-2 to 5 have been falsely implicated cannot be accepted. I answer point NO.4 in affirmative – Petition dismissed
Petitioners arraigned as accused Nos. 1 to 5 in C.C. No. 128/2002, pending trial for offences punishable under Ss. 406, 409 and 420 of IPC r/w Section 34 of IPC on the file of Principal Civil Judge (Sr. On.), have filed this petition to quash proceedings pending therein.
2. I have heard Sri. M.G. Kumar, learned counsel appearing for petitioners and Sri Udaya Holla, learned Senior Counsel appearing for 1 respondent and learned Government Pleader appearing for II respondent.
3. Brief facts necessary for disposal of petition is as follows:
The 1 respondent is a registered Financial Institution engaged in extending credit to various Industrial units. It is head office is situated at Manipal. During the year 1995, I respondent imported six wind operated electricity generators bearing Nos. 3265542, 3265543,3265544,3265547,3265548and 3265549 from Denmark. Petitioner NO.1 M/s. REPL Engineering Limited is represented through, its Chairman and Managing Director, Petitioners-2 to 4 are Directors and Petitioner NO.5 is the Company Secretary.
Petitioner NO.1 entered into a lease agreement on 29-9-1995 with I respondent Industrial Credit and Development Syndicate Ltd. (for short ICDS) and obtained on lease above-said wind operated electricity generators.
Pursuant to lease agreement, invoice and bill of lading were endorsed in favour of petitioner NO.1 and aforesaid wind operated electricity generators were received by petitioners-1 to 5 at Chennai Harbour.
In terms of lease agreement and memorandum of understanding entered into between respondent and petitioners were expected to install six wind operated electricity generators at Jamnagar, Gujarat State. They were expected to maintain and operate the said generators and pay rentals to 1 sl respondent. It terms of lease agreement and memorandum of understanding, ownership of said generators vested with 1st respondent and petitioners had limited rights of installation, maintenance and operation of said generators. The 1st respondent had a right to inspect the site of installation from time. The 1st respondent approached Syndicate Bank, availed letter of credit for a sum of Rs. 5,56,46,745/- towards payment of cost of six wind operated electricity generators to the Company situate at Denmark from where they were imported.
Petitioners have sold four wind operated electricity generators bearing Nos.3265542, 3265543,3265547 and 3265548 to Mis. True Max Engineering situated at Ahmedabad and one wind operated electricity generator bearing NO.3265545 to M/s Vadilal Industries Ltd., at Ahmedabad. The remaining one wind operated electricity generator could not be traced by 1st respondent. Therefore, 1st respondent filed a complaint under Section 200 of Cr.P.C. against petitioners before II Addl. Civil Judge (Jr.Dn.) and JMFC at Udupi. The learned Magistrate referred complaint to jurisdictional Investigating officer in terms of Section 156(3) of Cr.P.C. Act the time of investigation, Investigating Officer found the petitioners had not installed six wind operated electricity generators. On the other hand, out of six wind operated electricity generators to Mis. True Max Engineering and one wind operated electricity generator to M/s. Vadilal Industries Ltd. Ahmedabad. The Investigating Officer visited the said Companies, recorded statements of witnesses, and submitted charge-sheet against petitioners for offences punishable under Sections 406, 409 and 420 IPC and r/w 34 of IPC. The learned CJM of Udupi, on receipt of charge-sheet issued summons to accused persons. Since accused Nos.1 to 6 did not appear before the Court at a stretch, case against accused NO.5 was split up.
Accused NO.5 filed application for discharge. The said application was also supported by accused Nos.3 and 4. The trial Court by order dated 19-1-2005 dismissed the application and directed accused to answer charges framed against them under Sections 406, 409 and 420 of IPC. Thereafter, petitioners filed present petition. On 17-1-2006, int
