ORDER :

This Petition has been filed to set aside the order passed by the learned 5th Additional District and Sessions Judge, Coimbatore, in reversing the order of the learned Judicial Magistrate-1, Coimbatore, dismissing the Private Complaint under Section 203 Cr.P.C.

2. The brief facts leading to file this Petition is as follows:

2.a. A private complaint was filed by the defacto complainant/1st Respondent herein that the complainant is one of the leading manufacturers of agricultural monoblocks, open-well submersibles and various other types of motors and pumps with the brand name “texmo”. For their business they were in need of huge quantities of copper profiles and had been outsourcing for converting copper into copper profiles. The accused had been doing the job work for about 20 years to the complainant, that the complainant would give copper and the accused and the accused after conversion would give the copper profiles. The complainant conduct periodical stock audit of the material lying with their job workers. On 5.9.2013 while taking stock audit in the presence of the accused, it was found that copper weighing 29,975 Kgs. amounting to Rs.1,54,07,150/- was not available and the accused had misappropriated the same by diverting to his other customers with intention to cheat and defraud the complaint. The accused promised to replace the entire deficit of copper. In further stok audit it was found that the copper weighing 37,765 kgs valued at Rs.1,92,41,750/- was shortage. As the accused promised to replace the shortage, the complainant did not suspect, the accused had convinced the complainant to provide necessary collateral security for the loan to be availed with Indian Overseas Bank. The complainant had given the property and personal deposit as security for the loan. After availing the loan of Rs.8.75 Crore the accused had diverted the funs towards their personal use and caused the account to become Non Performing Asset. The bank has proceeded against the complainant. Despite the criminal complaint lodged before the police no action has been taken.

Hence it is the contention that the accused had dishonestly converting the copper entrusted to them for their own use and dishonestly misappropriated the copper and intentionally to deceive the complaint and committed breach of trust. Hence committed the offences under Section 420 and 409 of IPC.

2.b. Originally, after the police investigation the matter has been referred as

“Mistake of Fact”. Thereafter, Petition has been filed before the learned Magistrate for direction to the police to investigate the complaint under Section 156 (3) Cr.P.C. and file final report. However, the learned Magistrate treated the petition as private complaint, followed the procedure under Section 200 and 202 Cr.P.C. After considering the statement of witnesses dismissed the complaint holding that no criminal offence is made out, it is purely civil matter. Challenging the same revision has been filed. Learned 5th Additional District and Sessions Judge, Coimbatore, however, set aside the order of the learned Magistrate and found from the sworn statement of the complainant and other witnesses, that there is a prima facie materials to show that there was a deficit of copper to the tune of 29975 Kgs. and the same was acknowledged by the accused and held that there is a material for committing breach of trust and cheating. As against the above order the present petition has been filed.

3. Learned Senior Counsel Mr.B. Kumar appearing for the Petitioner submitted that there was a business transaction between the parties for more than two decades and the petitioner were suppliers of the copper profiles. Originally, the complaint given to the Commissioner of Police, Coimbatore on 11.8.2014 was closed as mistake of fact. The above complaint was given on the basis of the alleged stock said to have been taken on 05.09.2013. It is his submission that absolutely there is no materials to show that the accused commi