Petitioner is the accused in C.C.437/06 on the file of the Judicial First Class Magistrate, Payyannur. A complaint was filed by the 2nd respondent before that Court against the petitioner alleging Commission of offences u/Ss.408, 420 IPC etc. It was forwarded to the police u/s 156(3) Cr.P.C. After investigation final report was filed against the petitioner alleging commission of offences u/Ss.408 and 420 IPC.

2. It was alleged that the petitioner who was an agent or employee of the complainant committed criminal breach of trust and cheating to the tune of about Rs.20 lakhs during the period from 1995 to 2004 by quoting excess price for the tea which was purchased by the petitioner in the auction conducted at Kochi. This petition is filed to quash the complaint and the cognizance taken against the petitioner in C.C.437/36.

3. Learned counsel for the petitioner submits that originally the complainant conducted business under the name and style as 'P.C. Abdulla and Company' in Tobacco and Tea Dust. On the death of Abdulla Haji the business was partitioned. The tea dust business was taken over by the defacto complainant. A partnership was constituted under the name and style 'Parammel Traders' of which the complainant is the Managing Partner. At that time one Kunhiraman Nambair was the accountant of 'Parammel Traders'. According to the complainant during 1988 and 1989 petitioner was made an agent for participating in the auction for tea-dust held at Kochi and for that purpose an establishment named as 'Jayasree Traders' was formed and accused was made its owner. It was further alleged that the petitioner was paid half percent Commission for the work attended by him. According to the complainant the petitioner continued as an agent of the firm 'Parammel Traders'. It was contended that the petitioner quoted higher rates than the rates shown in the auction and received more amount from the complainant.

4. The learned counsel for the petitioner submits that admittedly 'Jayasree Traders' is the proprietary concern of the petitioner. The petitioner is the licensee of the same. He has been participating in the auction for tea-dust at Kochi from 1989 onwards. The tea-dust purchased by him in auction was used to be distributed by him originally to P.C.Abdulla and subsequently to 'Parammel Traders' for which he used to take reasonable profits. The allegation that he is only an agent of 'Parammel Traders' or of the complainant is denied by him. The learned counsel submits that no document whatsoever was produced to show that the petitioner was only an agent of the complainant. It is further pointed out that the name 'Jayasree Traders' is named after the petitioner's daughter Jayasree. The allegation that the company was only a 'dummy' of the complainant is stoutly denied by the petitioner.

5. There is force in the submission made by the learned counsel for the petitioner that action against the petitioner cannot be sustained on the alleged plea of binami set up by the complainant. The whole foundation of the case set up by the complainant is that the petitioner showed higher rates than the rates quoted by him in the auction conducted at Kochi and thus he has swindled huge amount. On the other hand the petitioner contends that he took part in the auction on his own accord and not as an agent of the complainant and that after purchasing the same he used to sell the same to the complainant quoting a slightly higher rate taking into account the expenses incurred by him and also a reasonable profit which he is entitled to get. Even if the amount quoted by him was slightly higher it cannot invite any penal action because as it is a business transaction he is entitled to aspire for a reasonable profit, maintaining commercial morality.

6. Learned counsel for the petitioner would submit that the complaint based on which the police investigated the case was filed long after the petitioner filed a suit before the Sub Court, Payyannur as O.S.