The main legal point established in the judgment is the requirement of entrustment and dishonest misappropriation for the offence under Section 409 IPC, as well as the necessity of fraudulent intention at the inception for the offence of cheating under Section 420 IPC.

S. RAVINDRA BHAT, J.

( 1 ) THESE revision petitions impugn a summoning order of the learned magistrate, delhi, dated 11-5-2005, in so far as it did not include Sections 409, 420 IPC, and section 138, Negotiable Instruments Act, 1881.

( 2 ) THE brief facts are that the petitioner filed complaints under Section 409/420 ipc and Section 138 of Negotiable instrument Act. The petitioner is a manufacturer of leather goods, shoes and accessories having trade mark of "woodland". It appoints various distributors amongst it Mrs. Varsha Gandhi, sole proprietor of M/s. Parth Associates applied for distributorship; that facility was granted and M/s. Parth Associates, was appointed by the petitioner, as distributor on 18. 02. 98.

( 3 ) IT is alleged that the accused Ms. Varsha gandhi gave to the petitioner firm six cheques in April and May 1998, total amounting to Rs. 17,76,294. 32/- ; the cheques, on presentation to the Bank were dishonored on the ground of insufficient funds. It is further alleged that the said second respondent thereafter issued 18 cheques for Rs. 5 lakhs each, aggregating to Rs. 90 lakhs, in discharge of outstanding liabilities, i. e of Rs. 92,93,131. 32 with assurance that they would be honoured by the banker on presentation. It was alleged that the petitioner presented the first cheque bearing No. 303519 dated 24. 10. 98 of Rs. 5 lakh drawn on Punjab National Bank, through his Banker, Dena Bank. It was dishonoured and returned with the remark "account closed" by the Bank. The other cheques were not presented.

( 4 ) THE petitioner filed complaints alleging commission of offences under Sections 409/420 IPC, in addition to that under Section 138 of the Negotiable Instrument Act (hereafter "the Act" ). It was alleged that closure of account by respondent showed an intention to cheat, prima facie, by fraudulently or dishonestly issuing a cheaque and making a false representation, inducing the petitioner to accept the cheques so that it may not be honoured. It was also alleged that the offence under section 409 IPC was made out as accused had represented the respondent No. 1, as its sole proprietor and was entrusted with the goods for sale, and had to hand over the sale proceeds to the petitioner. The accused respondents were acting as agents, and factor of the petitioner and the goods were entrusted to them, which they had to sell and remit the proceeds, to the petitioner. They dishonestly misappropriated goods and did not remit the sale proceeds of the complainant and thus committed an offence punishable under Section 409 IPC. Also offence under Section 420/120 B IPC are alleged to have been committed.

( 5 ) IT was further alleged that the offence under section 138 of the Negotiable instruments Act was made out. The petitioner had sent a notice, under Section 138, by registered post and thereafter also by substituted service, which was duly notarized and the report of Notary Public dated 29. 04. 99 was exhibited. The trial court, by its order however only summoned the accused, under Section 406 IPC. Aggrieved by the order the petitioner has approached this Court for issuance of the process under Sections 409, 420 IPC and section 138 of the Negotiable Instruments act.

( 6 ) IT was urged by Mr. Harjinder Singh, learned senior counsel that the accused were specifically entrusted with the goods in the capacity as distributor of the complainant and were supposed to hand over the sale proceeds to the complainant. Therefore, they were liable to be prosecuted under section 409 of IPC. It was also submitted that the accused sold the goods and to discharge the liability issued cheques form an account which was closed. Therefore, the accused committed the offence of cheating the complainant, and were liable to be prosecuted for Section 420 IPC. Counsel also urged that after getting intimation of bouncing of the cheque, by memo dated 27. 10. 1998, the complainant sent a legal notice dated 09. 11. 1998, which was served on 29. 04