S.K.MAHAJAN - (1.)The petitioner is carrying on business under the name and style of Chanda Advertising and besides having office at32,Metcalf Street, Calcutta since 1978 had also opened an office in Delhi sometimes in 1991 Respondent No.2 is the proprietor of a firm known as M/s.SMN Phototype Setters with their office at.l - 6, Lajpat Nagar - II, New Delhi. Since 1987 the petitioner had the dealings with respondent No.2 and used to get his work done from the said respondent for which 2regular bills used to be sent by her which in the normal course of business used to be paid by the petitioner. In the year 1992, the petitioner got some work done from respondent No.2 for which the said respondent submitted her bills and on a particular date a sum of Rs.1,36,394.00 was allegedly due from the petitioner to respondent No.2. Respondent No.3 was the office . in - charge of the petitioner's office in Delhi at the relevant time It appears that for certain reasons the petitioner closed his office in Delhi and shifted his entire activities to Calcutta from where he was earlier carrying on business. Respondent No.2 after having failed in her efforts to recover the money allegedly due to her from the petitioner gave notice to him through her advocate. In spite of notice the amount w as allegedly not paid by the petitioner. She, therefore, preferred a complaint against the petitioner and respondent No 3 in the Court of Additional Chief Metropolitan Magistrate alleging inter alia that the petitioner with dishonest intention not to pay the amount due to the complainant had closed his office in Delhi and had, therefore, allegedly committed an offence punishable under Section 420, 405, 406 Indian Penal Code. The statements of three witnesses were recorded by the Metropolitan Magistrate and by order dated 20th July, 1995 summons were issued to the petitioner and respondent No.3 as according to the learned Metropolitan Magistrate, the facts and circumstances of the case, prima facie, disclosed an oflence under Section 420/422 Indian Penal Code.
(2.)Being aggrieved by the order of summoning, the petitioner has filed this petition for quashing the same on the ground that even if the facts stated in the complaint were accepted in their entirety, they did not constitute any oflence for which the petitioner and respondent No.3 could be summoned by the Metropolitan Magistrate.
(3.)The allegations on the basis of which respondents No 2 wanted the petitioner and respondent No 3 to be summoned. have been made in the complaint dated March 27,1993. It would be relevant to reproduce some of the paragraphs which contain the allegations and which according to respondent No.2 constitute an offence punishable under Section 420/422 Indian Penal Code : -
"3. That the accused No. I had approached the, complainant in the year 1992 for getting some job works done in the due course of business, had placed certain orders for phototype setting etc.

5. That the accused No. 1 initially and accused No.2 subsequently with dishonest intention approached the complainant with a request to get the credit facilities for 60 days and the complainant having no knowledge of ill wilt and malaflde intentions of the accused persons, acceded to their requests, with the result, the outstanding payment accumulated with accused No 1 under the malaflde intention.

6. That a total sum of Rs.1,36,394.00 was due when the accused persons made request, as mentioned in the above para and before the expiry of the credit facility period both the accused dishonestly shifted their activities to their Calcutta office with a view to prevent the recovery of liability/due amount.

10. That thereafter the complainant sent a legal notice to the accused through her counsel Mr.S.P.Kaushal,Kaushal& Associates, by registered post A/Don 16.1.1995 but the accused No. 1 under the malaflde intentions had not come rward to clear the outstanding dues. Copy of the notice dated 16.1.1995, sent under registered post is also enclosed hereto and is annexed as Annexure "C".

12. That the accused persons made false representation to the complainant for getting credit facilities with a view to cause wrongful loss to the come nant and wrongful gain to themselves and their firm and as such, they committed a offence punishable under section 430 of the Indian Penal Code.-Had the complainant known the ill intentions of the accused persons before acceding to their request for credit facility from her, she would not have worked for the accused persons on the terms/request of the accused persons. Therefore, the accused are also liable to be prosecuted and punished for committing an offence punishable u/s 420 read with section 415 of Indian Penal Code. That the accused No. 1 having a clear contract/ understanding with the complainant to pay the amount after completion of job, has also committed violation of the terms and manner of the contract under which it was to be discharged and thus, the accused No. 1 has also committed a criminal breach of trust and is liable to be prosecuted and punished for an offence punishable under provisions of section 405/406 of Indian Penal Code."