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2009 Supreme(Gau) 632
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
R.S. Sodhi and Anr. and Manoranjan Pani and Ors.
Vs.
Partha Pratim Saikia
Decided On : 03.09.2009
Headnote:
Code of Criminal Procedure - Section 482 561A , 156(1) , 155(2) – Indian Penal Code , - Sections 2 , 8 , 11 , 193, 196 , 415 , 405 ,420 , 406/409/420/120B/34 - Income Tax Act, 1961 - Section 278B , 2(31) , 276C , 277 , 279(1) - FERA Act - Section 56(1)(i) - Securities Amendment Act, 1988 - Section 20 and 20(4)(e) - Sale of Food and Drugs Act, 1875 - Section 6 - Sale of Food and Drugs Act, 1899 - Section 20(6) - Railway Clauses Consolidation Act, 1845 - Section 99 , 98 , 46 and 43 - Misappropriated amount - Offence of Criminal misappropriation, cheating and criminal conspiracy - Charged - Accused-Federation sells its products under name and style of "Amul" products - Complainant is the proprietor of Agency having office - Complainant sells the said products of accused Federation in district - In terms of agreement, which complainant has had with accused Federation complainant was required to send demand draft in advance along with list of items required and accused persons used to send products at address of complainant immediately on receiving demand draft and also list of items required as aforementioned – Complainant however came to know that the accused persons had not received said two demand drafts - Eventually, a letter dated was received by complainant from accused whereby accused made allegations against complainant that complainant had hatched a conspiracy with accused and pursuant to this criminal conspiracy complainant with help of accused who was depot-in-charge had played fraud on accused Federation and accordingly had been placed under suspension – Held, States of mind of accused Nos. 3, 4 and 5 1 cannot in light of discussions held above and in the fact situation of present case be attributed to accused Federation prosecution of accused Federation is also not permissible - This apart as far as accused Federation (i.e., accused No. 7) is concerned, it being a juristic person cannot be prosecuted for an offence under Section 406 of IPC as already pointed out above until time a natural person is identified as mind and will of the accused Federation - It is therefore necessary that complainant identifies natural person or persons - It needs to be noted that (supra) is a case where company as well as directors who were at the helm of affairs had dishonestly misappropriated clothes entrusted to them for dyeing and it was in such circumstances particularly when there was specific finding of common intention that prosecution and conviction of accused were upheld by apex court - Present one is not such a case inasmuch as petitioner No. 1 - In result and for reasons discussed above complaint in question to the extent that same concerns accused-petitioners and also impugned order dated whereby issuance of summons to these accused have been directed are hereby set aside and quashed - Interim directions passed in these criminal petitions shall accordingly stand modified - Criminal petitions shall stand disposed of.
Iqbal Ahmed Ansari, J.
1. By this common judgment and order, I propose to dispose of both these criminal petitions inasmuch as both these petitions have arisen out of the same order, which stands impugned in these criminal petitions, and both have been, on the request made by learned Counsel for the parties, heard together.
2. By making these applications under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), the petitioners have sought for setting aside and quashing the order, dated May 30, 2007, whereby cognisance of offences under Sections 406/409/420/120B/34 of the IPC has been taken by the learned Additional Chief Judicial Magistrate, Kamrup, and summons have accordingly been directed to be issued against the present petitioners as accused.
3. I have heard Mr. J.M. Choudhury, learned senior counsel, appearing on behalf of the accused-petitioners, and Mr. G.N. Sahewalla, learned senior counsel, appearing on behalf of the complainant-opposite party. I have also heard Mr. N. Dutta, learned senior counsel, who has appeared as amicus curiae.
4. Before proceeding further, it is apposite to take note of certain facts, which are not in dispute. These facts may, in brief, be set out as under:
(i) M/s. Gujrat Co-operative Milk Marketing Federation Ltd. (hereinafter referred to as "the accused Federation") is a federation of co-operative societies formed to safeguard the interest of the milk producers, farmers and other manufacturers of various milk based food products, distribution and sale thereof. Whereas the accused Federation and accused R.S. Sodhi, chief general manager of the accused Federation, are petitioners in Criminal Petition No. 250 of 2007, accused Manoranjan Pani, assistant general manager of the accused Federation at Kolkata, accused Kamakhya Pradad Chaliha, sales manager of the accused Federation at Guwahati, and accused Apurba Mishra, depot-in-charge of the accused Federation at Guwahati, are the petitioners in Criminal Petition No, 273 of 2007.
(ii) The complaint, lodged against the accused-petitioners and some others, is, in brief, thus : The accused-Federation sells its products under the name and style of "Amul" products. The complainant is the proprietor of M/s. Brahmaputra Agency having office at Nagaon. The complainant sells the said products of the accused Federation in the district of Nagaon. In terms of the agreement, which the complainant has had with the accused Federation, the complainant was required to send demand draft, in advance, along with the list of items required and the accused persons used to send the products at the address of the complainant, immediately, on receiving the demand draft and also the list of items required as aforementioned. On July 28, 2006, the complainant sent his manager, namely, Rafique Ahmed, to prepare two demand drafts, each of rupees three lakhs, in favour of the accused-Federation, and the complainant's manager, as per instructions of the complainant, prepared the said two demand drafts in favour of the accused Federation, but made the mistake of drawing the drafts in the name of the State Bank of India (in short, "the SBI"), Jorhat Branch, instead of the SBI, Guwahati Branch. On July 31, 2006, the employee of the complainant was asked by the complainant to prepare another demand draft amounting to rupees two lakhs in favour of the accused Federation to be drawn at the SBI, Guwahati Branch; but this time too, the complainant's employee, by mistake, prepared the demand draft of rupees two lakhs payable at the SBI, Jorhat Branch. The accused-persons used to dispatch food articles within a week from receiving the demand draft. In the present case, when the complainant did not receive any material, which he was supposed to receive, in terms of the said demand drafts, the complainant made an inquiry, over phone, from the office of the accused Federation and also sent a letter, dated August 8, 2006, to accused. Apurba Kr. Mishra an
