9911796707
TMI Blog2008 (2) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered only upon receipt of demand drafts issued by it. The complainant sent two demand drafts for a sum of Rs. 18,000 and Rs. 1,50,000 for supply of goods on September 14, 2000, despite the fact that the dealership had been terminated earlier. The said demand drafts were sent to the appellant through the local sales in-charge of the company. It is stated that the complainant refused to take the same back. A new area wholesaler for Azamgarh was appointed by the company. A demand was made by the complainant to deliver goods by a letter dated September 24, 2000, stating that the company owes him a sum of Rs. 1,00,000. The stand of the company that his dealership had been terminated was reiterated by a letter dated September 25, 2000. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement was made. M/s. Akash Traders were the authorised agent of Britannia Industries Ltd., and according to terms and conditions of the agreement, Britannia Industries Ltd., used to supply biscuits to M/s. Akash Traders, Azamgarh. On September 8, 2000, Britannia Industries Ltd., terminated the agency regarding agreement as a result of which between the parties dispute arose. It is the submission of the complainant that on September 13, 2001, a bank draft of Rs. 1,68,000 was sent in favour of Britannia Industries Ltd., but on behalf of the accused the above amount did not return till February 7, 2001, to the complainant. The pleading on behalf of the accused is that the bank draft of Rs. 1,68,000 was returned to M/s. Akash Traders on Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady been prepared in favour of M/s. Akash Traders, Azamgarh, and after the departmental proceedings of clearance on February 19, 2001, the complainant had received back the amount on February 19, 2001. Thus, it is clear that the applicant/accused had transferred an amount of Rs. 1,68,000 on January 8, 2001, in favour of the complainant M/s. Akash Traders through bank draft, thus, in transaction whatever delay was made in returning back the amount of bank draft that has been committed due to proceedings relating to payment being done due to banking process and looking to the aforesaid facts it becomes clear that on the side of applicant/accused there was no intention of criminal misappropriation and, thus, there is no appropriate basis to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence is made out against the applicant and there is no procedural mistake in taking cognizance and summoning the applicants, therefore, the prayer for quashing the impugned orders dated May 8, 2001, passed by the learned Magistrate, Azamgarh, and June 5, 2002, passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Azamgarh, is refused. The interim stay order dated July 3, 2002, is vacated. Accordingly, this application is dismissed." The short question which arises for consideration is as to whether the complaint petition, even if given face value and taken to be correct in its entirety, disclosed an offence as against the appellant under section 406 of the Indian Penal Code, 1860. Section 405 defines "criminal breac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a person to whom he property is entrusted. Ingredients of the offence under section 406 are : "(1) a person should have been entrusted with property, or entrusted with dominion over property ; (2) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so ; (3) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the per son has made, touching the discharge of such trust." As, admittedly, drafts were drawn in the name of the company, even if appellant was its managing dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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