Delhi High Court
Anita Khanna vs Jaffrey Exports Pvt Ltd & Anr on 15 December, 2015
Author: Suresh Kait
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 15th December,2015
+ CRL.M.C. 5091/2014
ANITA KHANNA ..... Petitioner
Represented by:Mr. R.K. Trakru, Mohd. Sajid
and Ms. Bela Khattar, Advs.
versus
JAFFREY EXPORTS PVT LTD & ANR ..... Respondents
Represented by:Mr. Naresh Kr. Basoya, Adv.
for R-1.
Mr.Hirein Sharma, APP for the State .
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present petition, the petitioner seeks directions thereby
setting aside the order dated 22.11.2013 whereby the learned Trial
Court issued summons against the petitioner.
2. The respondent filed a complaint case before the Trial Court vide
CC No.27/1/2012 and thereto has examined himself as CW-1 in
pre- summoning evidence. Thereafter, considering the averments
of the complaint and evidence of CW-1, the Trial Court vide order
dated 22.11.2013 issued summons against the petitioner along with
other co-accused.
3. The facts of the case are that the complainant/respondent supplied
goods worth US$ 68531.70 to M/S Angelique Apparel Inc. of
which accused no.2 and 3 are directors through accused no.1 who
works as an agent. The respondent company shipped goods to
CTC Air Carrier Pvt. Ltd on 22.02.2011 which in turn sent the
same to accused no.4 along with consignment invoices. Accused
no.4, vide its letter dated 25.02.2011 made request for release of
consignment to M/S Angelique Apparel Inc. The respondent
through its exchange dated 01.03.2011 made request to accused
no.4 to pay US$ 68531.70 to its bank. However, no reply was
received from the said accused. The documents pertaining to the
shipment were received by M/S Angelique Apparel Inc. and the
petitioner was accordingly informed by the respondent. After
receipt of the goods, the petitioner through mail dated 10.03.2011
raised certain quality issues to the respondent/complainant. Those
issues were cleared by the respondent vide letter dated 11.03.2011,
replying that goods were inspected by ITS and report was passed as
per AQL standard. Subsequent thereto, the respondent made a
number of requests to all the accused persons for making payments
but the payment was deferred on assurance of accused persons on
one pretext or the other.
4. Accused no.2 informed the respondent on 23.07.2011 through mail
that the schedule of payment had been submitted to the bank for
resolving the issue. However, the payment was not made despite
accused no.2 and 3 have been received goods.
5. Learned counsel appearing on behalf of the petitioner submits that
the petitioner had not received the goods, she is only an agent who
worked between the respondent and the other co-accused. She had
to receive only 5% commission which she did not even receive in
this transaction. Moreover the respondent had not filed any
recovery suits against the other co-accused, however filed the
criminal case. In view of the circumstances, the case is purely of a
civil nature, therefore, when the respondent approached the
concerned police authorities, they did not lodge the FIR. However,
the respondent filed the aforesaid complaint and succeeded in it.
6. It is not in dispute that the petitioner had business relationship with
the respondent in the past. As per the complaint, the allegation
against the petitioner is that after gaining confidence of the
respondent, the petitioner along with accused no.2, 3&4 entered
into a criminal conspiracy with the object to cheat the respondent.
In pursuance of the said criminal conspiracy, in the month of
September, 2010, the petitioner approached the respondent for
supply of readymade garments and placed order on 22.09.2010 vide
Bulk Work Order No. 5079F-B and 5079B. The petitioner
represented the respondent that she is acting as a buying agent on
behalf of M/S Angelique Apparel Inc. As stated earlier, accused
no.2 and 3 are the directors/owners of the said company.
Accordingly, the respondent put the order placed by the petitioner
in production. The production was inspected by inspecting agency
and the petitioner on behalf of M/s Angelique Apparel Inc. agreed
that the payment of the said shipment would be made only through
designated bank as was done in the earlier transaction.
7. In pursuance of the said criminal conspiracy, one week prior to the
dispatch of goods, the petitioner and the accused no.2 informed the
respondent that the goods would be dispatched through accused
no.4 instead of the designated bank and assured the respondent that
payment would be made in time and it was as good as the shipment
through designated bank. However, till date the respondent has not
received any amount either from the petitioner or from other
accused.
8. It is not in dispute that the petitioner, being a mediator, played a
main role. At this stage, it cannot be said that she had cheated the
respondent or hatched the conspiracy to cheat the respondent which
is a matter of trial.
9. The learned trial court only issued summon to the petitioner along
with co-accused and that too by leading evidence by the respondent
no.1 examining himself as CW-1.
10. In view of the above, the petitioner has failed to establish any
perversity or illegality with the impugned order passed by the trial
court.
11. However, liberty is granted to the petitioner to raise all her issues
before the trial court at the appropriate stage.
12. At this stage learned counsel appearing on behalf of the petitioner
made an oral prayer that the petitioner being a lady may be
exempted from personal appearance before the trial court.
13. For the aforesaid purpose, the petitioner is at liberty to move
application before the trial court and the same shall be considered
by the trial court in accordance with law.
14. Finding no merit in the instant petition, the same is dismissed
accordingly.
Crl. M.A.No. 17420/2014
Dismissed as infructuous.
SURESH KAIT
(JUDGE)
DECEMBER 15, 2015
RS
