quashing of case u/s.482
abdul rahaman
(Querist) 30 November 2009
This query is : Resolved
Kindly give suitable reply along with relevant supreme /high court cases references for the following queries to my email address abdul-r@in.com :-
1.REGARDING F.I.R WITH REGARDS TO CRIMINAL CASES:
CONTENTS OF FIR:-
Date of filing FIR is 1-9-1997.
Occurence of offence before 21-8-1997.
Mr.Mohan the managing partner of M/s.TTC situated at yercaud . Since 1994,he started an export coffee agency company in the name of M/c.TTC involving the names of his family members.The managing partner,Mohan (complainant) had entered into an agreement with M/s.AS limited company, at Bangalore which is the coffee exports company , for the purchase and direct exports after curing the raw coffee as per the directions of M/s.ASLtd.The said contract took place in the month of December1994.
Mr.Mohandas was working as the office superintendent of Moganad Group of Plantation from 1990.Mr.Mohan ,the complainant entrusted Mohandas (A-1)to look after the purchase of coffee seeds on behalf M/s.TTC and on behalfof during the course of the said transactions A-1 was given money in advance through signed vouchers.The said A-1,Mohandas failed to purchase coffee ,but connived with the other accused,prepared false purchase statements , manipulationof some documents at M/s.ASltd,Bangalore andin the pulp house at Moganad coffee estate.Accused have misappropriated the funds of M/s.TTC of 2.83 crores and cheated the complainant.In this regards the Mohan filed a criminal case on
In regards criminal case u/s.408 IPC was registered with Yercaud police station and subsequently the case was transferred to CBCID,Salem for further investigation.
Quaries:-
1) Whether the delay in filing filing of FIR of about 11 days (21-8-1997 to 1-9-1997) with regards to the offences of misappropriation of funds ,breach of trust ,etc is acceptable by the law.
2) The principal had recovered the advance amount paid to Mohan of 1.75 crores instead of 2.8crores .
The settlement agreement mentioned dealing between Principal , M/s.ASL and Mohan.There was no mention of the name of M/s.TTC.
Since the FIR was filed by Mohan in the capacity of Managing partner of M/s.TTC , Whether TTC has legal bearing with M/s.ASL ,and the other accused persons. Secondly, whether the shortage as per FIR (2.8 crore) and acual settlement for 1.75 crores is binding on accused persons .
3) Accused filed before Magistrate court for the Agency agreement,accounts statements of both principal and agent,bank authorization letter for operation of bank accounts, etc
In response to this , the principal has filed an affidavit before the Magistrate court stating that “ there is no agency relationship between the Principal and agent, the M/s.AS Ltd ,Bangalore engaged the Mohan to draw the money from the bank opened with the SBI,yercaud branch and purchase the coffee seeds and dispatch the coffee seeds to the export customers of the principal. It engaged Mohan as it’s agent for which there is no written agency agreement and only authorized to with draw cash from bank. The Mohan is entitle for commission @50/-paise perKg.
The principal is unaware of such partnership firm M/s.TTC, stating as it’s agent.
The accounts books maintained under computer have been crashed and only it could file the audited statements for 1996 to 1998.
On perusal of this statements, that there was no shortages of stocks of coffee in the audited statements.
What is the legal position / relationship between M/s.AS ltd and M/s.TTC regarding enforcement of rights against third parties?
Whether TTc will succeed against third for the recovery of money?
4) Similarly in response to the court directions ,M/s.TTC filed only balance sheet and profit and loss a/c for 1995-96 and 1996-1997 and 1997-98 but not produced books of accounts along with vouchers ,documents statements etc.
On perusal of the statements
The audited balance sheet and P/L account for 1995-96 and 1996-97 contained no mention of any shortage of stock or funds.
Where as the balance sheet for 1997-98 was not audited and it was simply signed by Mohan and filed the same before income-tax and had created in Balance sheet liability of 2.8 crores and tallied the same with debtors on assets side ( mentioning 13 persons name).
In this circumstances please ,give whether the same statements have enforceable evidence in the court?
5) After verification of records of registrar of firms the managing partner, Mohan formed an un registered firm by involving his family members called M/s.TTC .What is the legality of enforcing of this case by M/s.TTC against the accused persons.?
6) Mohan had kept Mohandas as House arrest and filed this case.
Then what is the legal enforcing probability by TTC against third parties?
7)In this connection Inspector of police ,yercaud brought Mr.Abdul from Bangalore and enquired regarding the offence. Mr.Abdul denied the offence and therefore inspector of police released him to go Bangalore. Later this case was shifted to CBCID ,Salem.
Let me know ,whether there are any formalities /documents /reports to submitted by the Inspector of police, Yercaud to the Inspector of CBCID, Salem for further investigation?
The name of the inspector of police ,Yercaud is included as witness in the charge sheet.
In this circumstances what is the legal standand probable reply of inspector of police,Yercaud.?
8) Mohan with the help of Inspector of CBCID, Salem arrested Mr.Abdul from the house and searched the house with threat to arrest whole family members and taken Fixed deposit receipt for 25 lakhs (40 FDR) in the names of his family members .and arrested Abdul taken to Salem and under duress given all Fixed Receipts to the complainant along with a letter got signed as if Abdul gave these Fixed receipts to Mohan ,Yercaud in the presence of his employeeMr.Rama ,who is the witness for this submission of FDRs and begged for excuse.
Mr.Abdul have all accounts for the fixed deposits (40 nos) and filed with Income-tax Dept.
Now the question of false witness who is the employeeMr.Rama for this case is how far gives weightage?
Mr.Mohan kept all the FDRs and tried to encash from the varios banks,but Abdul had circulated registered letter stating that all these FDRs had been confiscated illegaly and not to pay him. Thus Mohan couldnot encash the FDRs and after filing application by Abdul before magistrate for return of FDRs ,after a gap of 6 months from the date of arrest produced to court.
What is the legality of holding case property without handing to Inspector of CBCID,Salem?
What is the wrong on the part of the Inspector of police,CBCID, Salem in not recovering the case property ( 40 FDRs)?
9) Even the charge sheet does not contained the names of other 2 persons arrested and released in this case.
What is the legal status of such charge sheet?
10) The remand report of Abdul contains the name of one witness who is entirely different from the actual witness in the statement u/s.161.i.e. The name of person of witness is not reflected in the remand report.What is the strength of such report of one witness only ?
Raj Kumar Makkad
(Expert) 30 November 2009
I suggest you to engage a competent local lawyer, who can go in depth of your lengthy quarry and sort out the problme accurately.
Sachin Bhatia
(Expert) 06 December 2009
Better to consult the matter with a local lawyer.
