JUDGEMENT
G.R.UDHWANI -
(1.)THE accused petitioner herein is sought to be charged inter-alia for the offence punishable under Section 406 of
Indian Penal Code ( for short "IPC") on the allegation that the
complainant had sold the goods to the petitioner during the
course of business relation of the complainant with the
petitioner, and that one of such transaction was entered into
on 08th January, 1997 when the accused purchased cotton
bales from the complainant with a promise that he would
make payment within period of 30 days, failing which he
would pay interest at the rate of 21% per annum. It was
alleged that, thus, the accused won the trust of the
complainant by giving aforesaid promise. However,
thereafter the accused did not pay and, therefore, according
to the complainant, the case triable under Section 406 of IPC
was made out. A complaint therefore was lodged.
(2.)INITIALLY the accused applied for discharge which was granted, however, the order of discharge was set aside in a
revision application filed by the complainant. The accused did
not challenge the said order, but instead, he participated in
the proceedings, pre charge evidence was recorded by the
trial court, and thereafter by way of impugned order it was
ruled that a case was made out against the accused for
framing the charge. The petitioner original accused is
aggrieved by this order and is therefore before this Court by
way of this Criminal Revision Application.
Learned advocate for the petitioner would submit that no case was made out for the offence under Section 406 of
IPC and, therefore, impugned order suffers from apparent
illegality. In his submission, the transaction dated 8.1.1997
was purely a commercial transaction and the accused was
merely an agent, and had not purchased any goods from the
complainant, and in fact, since the accused could not pay the
amount due to the complainant, after a period of two years of
the transaction, the complainant has filed a civil suit for
recovery, and simultaneously, a criminal case i.e. a private
complaint being Criminal Case No.336 of 1999 was also filed.
It is submitted that before the trial court, bills, notice and
other related documents were produced, but there was no
evidence showing the receipt of any amount by the petitioner
so as to attract Section 406 of IPC. He, therefore, submitted
that no case is made out against the accused for framing the
charge and, therefore, in his submission, the revision
application should be allowed.
(3.)LEARNED APP would support the impugned order with a submission that ingredients of Section 405 of IPC are squarely
attracted in the facts of the case and, therefore, the impugned
order is not required to be interfered with in exercise of the
revisional powers vested with this Court.
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