JUDGMENT :- Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Shri. M. M. Agnihotri, learned Counsel waives notices on behalf of the respondent No.1 and Shri. K. S. Dhote, Additional Public Prosecutor waives notice on behalf of the respondent No.2.

2. The applicants assail the order passed by the learned Judicial Magistrate, First Class, Pulgaon dated 21th June. 2005 thereby issuing the process against the accused for the offence punishable under Sections 406,409,420 read with Section 34 of the Indian Penal Code. The facts, in brief leading to the present application are as under.

3. The applicant No.1, Company, which is the accused No.1 in the complaint, is a Sugar Manufacturing company. The accused No.2 is the Managing Director and Chairman of the accused No.1. The accused Nos.3 and 4 are the Merchants/ Brokers working for the accused No.1. The accused No.5 is the partner of the accused No.4.

4. It is an allegation of the complainant, respondent No.1 that on 10th May, 2004, the accused No.3 by telephonic message induced the complainant who was at Pulgaon for purchasing 300 bags of sugar. It is the allegation of the complainant that the accused No.3 gave a telephonic message to the complainant and offered him to purchase 300 bags of sugar at the rate of Rs. 1485/- per bag. It is further alleged that the complainant accepted the said offer and as such the accused No.3 instructed the complainant to send a demand draft of Rs.2,22,750/- in the name of the accused No.1. It is alleged that accordingly demand draft for the said amount was drawn by the complainant in the name of the accused No.1, Company payable at Bank of Maharashtra, Latur Branch and the same was posted and entrusted in the hands of the accused No.3. It is alleged that the said demand draft was given by the accused No.3 to accused No.2. It is the allegation of the complainant that, however, the accused No.2 neither gave the agreed sugar bags nor repaid said amount. It is alleged that though the accused nos.3 and 4 had sent a letter to the accused No.2 requesting him to deliver the agreed goods to the complainant, the accused No.2 flatly refused to deliver the said goods. It is alleged that the said amount was collected by the accused No.2 in the name of accused No.1. The complainant, therefore, alleging that the accused Nos.1 to 4 had misappropriated the said amount and also cheated the complainant by inducing him to pay the amount and thereafter refused to deliver the goods, filed a complaint for the offence punishable under Sections 406, 409,420 read with Section 34 of the Indian Penal Code. The complaint was also verified by the complainant. The learned Magistrate initially called for an enquiry report from the police under Section 202 of the Code of Criminal Procedure. Vide order dated 21st June, 2005, the learned Magistrate issued a process for the offence punishable under Sections 406, 409, 420 read with Section 34 of the Indian Penal. Being aggrieved thereby, the applicants are before this Court.

5. Heard Shri. R. B. Pendharkar, the learned Senior Counsel, appearing on behalf of the applicants and Shri. M. M. Agnihotri, the learned Counsel appearing on behalf of the respondent No.1.

6. Shri. R. B. Pendharkar, the learned Senior Counsel assails the impugned order on the following grounds.

(i) That, the Court at Pulgaon did not have territorial jurisdiction as the entire cause of action arises within the jurisdiction of the Court at Mazalgaon.

(ii) That, the dispute was entirely civil dispute and no ingredients were made out to make out an offence for which the process was issued.

(iii) That, the applicant No.1 was a juristic person and as such he could not be charged with the offence for which the process was issued, as mens rea, was an essential ingredient for the offence.

(iv) That, the order of issuance of process was passed mechanically and no reasons were recorded for issuance of process.

(v) That, since the report submitte

Click Here to Read the rest of this document