IMPORTANT POINT
The court established that a complaint must disclose a criminal offence; mere civil disputes cannot be treated as criminal under Section 406 IPC.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. N. Deka, learned counsel for the petitioners. Also heard Mr. N. Mahajan, learned counsel for the respondent.

2. The present petition is filed under Section 482 of the Criminal Procedure Code, 1973 for quashment of C.R. Case No. 3182/2010 instituted by the sole respondent under Sections 405/406/415/417 of the IPC pending in trial before the learned Sub Divisional Judicial Magistrate-I, Kamrup at Guwahti. The further challenge is an order dated 29.06.2011 passed by the learned Sub Divisional Judicial Magistrate-I, Kamrup at Guwahati whereby cognizance of offences under Section 406 of IPC was taken.

3. The brief facts leading to the filing of the present case are narrated as follows:

(I) The complainant, Assent Chemicals Limited is a company incorporated under Companies Act, 1956 and is engaged in the business of Alum, Soapstone Powder and Fortified Rosin.

(II) The petitioner No. 2 is the Director of Petitioner No. 1 i.e. Sizoll Chemicals Pvt. Ltd who are arrayed as accused No. 1 and 2 in the connected complaint.

(III) According to the complainant, there were business dealings between the parties and in the month of September, 2009, the complainant and the accused company through his Director accused No. 2 had entered into an oral agreement for sale and supply of Gum Rosin and in terms of the aforesaid agreement, an amount of Rs. 17,00,000/- (Rupees Seventeen Lakhs) only was paid to the accused for supply of approximately 40 MT of Gum Rosin.

(IV) It was further alleged that the accused after having received the aforesaid amount, Gum Rosin of Rs. 5,06,626/- was only supplied in two consignments on 11.10.2009 and thereafter, balance materials were not supplied by the accused and subsequently returned an amount of Rs. 5,00,000/- to the complainant and promised to return the remaining amount of Rs. 6,93,364/- within a month.

(V) It was further alleged that though the accused person promised to return the aforesaid amount, they did not return and accordingly, the complainant by their e-mails issued on different dates ranging from 18th March 2010 till 27th March 2010 requested the present petitioner to refund the balance amount within 31st March, 2010, however, such amount were not paid.

(VI) Thereafter, in the month of June, preciously on 05.06.2010, the complainant issued a pleaders notice which was duly served upon the accused No. 1 and thereafter also, no such amount was returned and it was alleged that the accused person had dishonest intention did not refund the said amount and converted the same for own use and accordingly, another statement of account was sent to the accused No. 1.

(VII) There were certain statements in the complaint that the accused has fraudulently and dishonestly induced the complainant to make advance payment etc. Accordingly, the complaint was filed.

4. The learned Magistrate after receipt of the complaint recorded the statement of the Managing Director of the complainant company under Section 200 Cr.P.C. on 29.06.2011, which is quoted herein-below:

“Initial deposition of Dwarka Prasad Agarwall S/o Sri Satya Narayan Agarwall R/o Fancy Bazar, P.S. Panbazar, Age-43 years.

On oath,

I am the Managing Director of Assent Chemicals Limited, Sizoll Chemicals is a Private Company deals in supply of Gum Rosin. As per verbal agreement, I paid Rs. 17 Lakhs in total by cheque for supply of 40 Matric Tonnes of Gum Rosin. After supplying only about 15 Matric Tonnes, they stopped further supply. 15 Matric Tonnes is of value of Rs. 5,06,626/-. Thereafter on earnest request being made to disburse the materials as agreed, accused failed to do but repaid only Rs. 5,00,000/-. Balance Rs. 6,93,364/- is still left to be paid by the accused. Several reminders were given to the accused and a notice was sent on 05.06.2010 vide registered post A/D card, which were received by accused. Accused had the intention to cheat the company from the very inception.

Witness: Nand Kishore Agarwal, Branch Manager,