The main legal point established in the judgment is that both civil and criminal cases can be filed for the same facts if the complaint makes out a case punishable under the Penal Code.

JUDGMENT :

B.R. Sarangi, J. - The petitioners have filed this application to quash the proceeding initiated against them and to set aside the order refusing to recall the order dated 12.02.2002 passed by the learned S.D.J.M., Panposh in I.C.C. Case No. 56 of 2001 taking cognizance of the offence punishable under Sections 420/403/406/34 I.P.C. The facts as revealed from the complaint petition are that M/s. Jamshedpur Beverages Ltd. appointed one Umakanta Barik as a dealer for its product who was carrying on business in the name and style of "Subhalaxmi Agency" at Rourkela. During the course of business, Umakanta Barik paid different amounts at different points of time to the Company for its product and other business. All the transactions of the Company in respect of Umakanta Barik were either made by him or through others. The Company has never transacted business with anybody else in respect of the business of Umakanta Barik in their personal capacity. The complainant-Trilochan Barik filed a complaint case stating that the petitioners in the capacity of Managing Director of the Company and one Bani Prasad Banerjee, who was an employee of the said Company, are responsible for committing the offence. Umakanta Barik and complainant-Trilochan Barik (opposite party No. 1) had the relationship with regard to the management of their dealership, for which they were also maintaining the books of account. It is further alleged that while maintaining the books of accounts, the complainant has taken money from the source which has been mentioned on various dates under the heading of expenses.

2. It is further stated that with the knowledge of the accused persons, particularly, Bani Prasad Banerjee, who was an Area Development Manager of the Company and the Managing Director and as per their guidance and negotiations, the complainant has invested money through its partnership business and Bani Prasad Banerjee and Umakanta Barik have persuaded the complainant to deposit money for Beverage transaction under the dealership which was running in the name of Umakanta Barik. In good faith, the complainant had given money, but subsequently, he could not get back his money when the said Jamshedpur Beverage Company was liquidated and was merged with another company. Ultimately, with the connivance of accused-Bani Prasad Banerjee and the Managing Director of Jamshedpur Beverage accused Umakanta Barik has grabbed the money which was invested by the complainant.

3. Jamshedpur Beverage issued letter dated 16.03.2001 to the complainant wherein in continuation of their letter dated 08.03.2001, he was requested to come down to Jamshedpur for necessary discussion in connection with his claim for refund of the money purported to have been deposited with the Company for soft drink agency at Rourkela. With regard to the complainant's claim, they have admitted that a sum of Rs. 1,91,772/- was deposited by Umakanta Barik, the proprietor of M/s. Subhalaxmi Agency, Rourkela with the company, which was adjusted in his account as per the details given in the letter. The details of the draft number, the money receipt number and the amount given were also mentioned. It is clearly revealed that, the authorities of Jamshedpur Beverage Ltd. has acknowledged the receipt of the money from the complainant, but on the other hand, they have admitted that, it was adjusted in the account of Umakanta Barik. From the said letter itself it is found that the money paid by the complainant which has been duly acknowledged has not returned but the same has not been adjusted through Umakanta Barik in his account. As such, while adjusting the said account no consent has been taken from the complainant. The invitation for compromise being an after-thought, the complainant filed complaint before the learned S.D.J.M., Panposh for commission of offence under Sections 420/403/406/34 I.P.C. and the learned Magistrate took cognizance of the said offences.

4. The accused has filed an application t