ORDER

1.Leave granted.

2. The appellant is the accused in a complaint filed against him by the respondent Company for offence under Sections 415, 418 and 420 IPC. As per the allegations made in the complaint dated 8-6-2001, filed in the Court of Judicial Magistrate, First Class, Bhor, the appellant was an authorised distributor of the respondent complainant Company for 15 years.

3. The allegations in the complaint are that a memorandum of understanding (MOD) dated 16-8-2000 was executed between the accused and the complainant for the period 16-8-2000 to 30-11-2000, which, inter alia, stipulated that 50% of the payments against monthly quantity would be given in advance and balance 50% on receipt of the goods by M/s Shikhar Enterprises or its sister concern. The accused had two firms, namely, (1) M/s Shikhar Enterprises, and (2) Mis Gulshan Agencies at Delhi. The complainant delivered 56,94,120 reels of steel grip tapes valued at Rs 3,38,62,860 to the accused during the period 19-8-2000 to 20-11-2000 and out of this amount, the accused made only part-payment of Rs 3,05,39,086 leaving balance amount of Rs 33,23,774. The allegations are that after making this payment, the accused did not make further payment despite repeated demands and started giving reasons such as cash-flow problems, non-receipt of right type of colour assortment and sales tax problems, etc., besides raising disputes in respect of the material purchased six years back being defective. After making the aforesaid averments in the a complaint, it is concluded that the MOD was signed with mala fide and criminal intention of grabbing money and goods from the complainants Company. The averments made in that regard are as under:

"From the above it is very clear that MOD was signed by the accused with mala fide and criminal intention of grabbing money and goods from the complainants Company and to deceive, cheat and cause wrongful loss to the complainants Company, but the complainant was not aware of the criminal intention of the accused while execution of above MOD."

4. The complainant had also sent a notice dated 9-4-2001 to the accused, the relevant part whereof reads as under:

"As per record my client has delivered reels of steel grip tapes of Rs 2,56,70,834. Against that you paid only Rs 2,09,91,559 to my client. For balance amount my client is repeatedly demanding you through telephone and writing letters to you but still you are not responding to it. By your said act my client is suffering major loss in his above business. So at end my client has decided to issue this legal notice to you. So I am informing you by this notice that within 8 days after receiving this notice by you, you should arrange to pay Rs 46,79,275 which are due from you to my client. My client is also demanding simple interest at the rate of 10% on above amount for loss of interest. If you failed to act upon as per notice, my client will take necessary action against you and you will be held responsible for all expenditure of it. Legal charges of this notice are kept on you."

In the aforesaid notice, there is no whisper about any deceit or cheating. On 3-5-2001, a complaint was filed by the complainant with Bhor Police Station where except a vague allegation about cheating, nothing of substance was stated. It would be useful to reproduce, as under, the said complaint:

"Shri Anil Mahajan is the dealer of the Company for goods. That by an agreement dated 12-8-2000 the said dealer has supplied the goods by the Company worth 42,60,660 reels (tapes) the price of which is about Rs 2,56,70,834 from 21-8-2000 to 30-11-2000. Out of that amount he has returned only Rs 2,09,91,559 and the remaining amount of Rs 46,79,257 is outstanding for recovery against him. In spite of repeated demands the said person has not paid the said amount. Consequently summons should be sent to him and criminal proceedings may kindly be started against Shri Anil Mahajan, the dealer. He has done cheating with the Company."

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