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TMI Blog2008 (12) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... llant No. 2 is the Accounts Manager, Appellant No. 3 is the Shipping Manager, Appellant No. 4 is one of its Directors and Appellant No. 5 is a Consultant for the Company. Appellant No. 6 is an employee of Bax Global Private Ltd. who has nothing to do with the appellant company. 4. In the complaint petition, the complainant alleged that the appellant Nos. 1 to 4 had approached the Aarbee Apparels Impex which is engaged in the manufacture of Hosiery Garments in the month of December 2004 for supply of men's cardigan and sweat shirts for the total value of 76,197.60 Euros to Ultimate Buyers at Germany. Pursuant thereto or in furtherance of the said contract entered into by and between the parties, export of the said garments were made by Respondent No. 2. The Company is said to have issued various inspection certificates in the following terms : This is to certify that the goods of above Order have been inspected prior to shipment and found in order and good conditions. This certificate shall be entirely without prejudice and shall not absolve the seller from liability in respect of any actions, claims, demand of proceedings subsequently taken or made by TMS (Fashion) Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule delivery date and ultimately, even the letter of credit opened on you by Manhattan expired. To our clients short and dismay, it was found that practically none out of the garment were defective. A Complete quality check was proving difficult because of your non- cooperation and finally TMS had to send its staff from Chennai to supervise the quality check by end January 2005. The order was coming into your factory from various jobbers in bits and much time the garment was checked, it could not be the checked garment factory since you did not even have an repeating apparently, many of the pieces rejected to TMS quality control staff were repeated and brought by you as if it had passed scrutiny. Ultimately by middle of February 2005, our client already threatened with huge penalties by the buyer due to delay, decided that 7.080 pieces would be shipped out on the understanding that you will receive payment only for those garments accepted by the buyer. The final inspection reports from TMS passed these items only under your letter of guarantee for the various defects pointed out in the reports. It is relevant that Order No. 7051949 Styles P30837 totally rejected by TMS, Tirupur, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te our clients repeated mails to you, you have neither bothered to respond and explain and rejection of the goods nor have you agreed to make arrangements to take back the consignment. Our clients have been informed by the buyer that they will not be responsible for the consignment after 10.4.2005. The warehousing and handling charges would have to be borne by you. Having guaranteed the quality of the consignment to the standards set by the buyer, you cannot today claim the value of the order from our clients and instead you are due to our clients the damage suffered by them by your non-performance. On behalf of our clients, we hereby call upon you to pay our clients a sum of ₹ 28,61,130/- being the rupee equivalent of 52,020.54 Euro within 15 days of receipt of this notice, failing which our clients will institute appropriate legal action for the recovery thereof, needless to add at your costs and consequences. Further, be forewarned that further claims from the buyer to our client's account will be in turn claimed by our clients from you. This notice is issued without prejudice to our clients rights to you for malicious prosecution and damages on account of your complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong Kong Company was revalidated upto 28.2.2005, having consigned the goods, the de facto complainant approached the State Bank of India, Tirupur Branch but was unfortunately informed by the State Bank of India, Tirupur Branch that the Letter of Credit was never revalidated, it is further contended in the complaint. The allegations of criminal conspiracy and cheating have been made in the complaint. It was furthermore opined : 16. In the instant case, it has been specifically contended in the complaint that the petitioners herein enticed the de facto complainant to part with the goods having made misrepresentation that the Letter of Credit opened by the Hong Kong Company was extended for a further period and thereby the accused de facto complainant was duped by the petitioners herein. Therefore, the above authority will not apply to the facts and circumstances of this case. The High Court concluded: 20. It is not as if that the complaint lacks ingredients of the offence of cheating and criminal breach of trust. The petitioners cannot wriggle out of the investigation process embarked upon by the second respondent-police on the ground that they acted as an agent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty; or iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. Criminal breach of trust is defined in Section 405 of IPC. The ingredients of an offence of the criminal breach of trust are : 1. Entrusting any person with property or with any dominion over property. 2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation-- (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust. Ingredients of Section 409 of IPC read as under: (i) The accused must be a public servant; (ii) He must have been entrusted, in such capacity, with property. (iii) He must have committed breach of trust in respect of such property. 11. The First Information Report contains details of the terms of contract entered into by and between the parties as also the mode and manner in which they were implem ..... 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