Bommagani Ramulu, vs The State Of A.P., Rep By Pp.,And ...
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    THE HON'BLE SRI JUSTICE A.GOPAL REDDY

                CRLRC No.48 of 2010
%19.2.2010

# M/s. Charan Medical Devices, though its Partner,
Rep by Kalyan Kumar, C.E.O.,
Flat No.502, Chandra Towers, Naveen Nagar,
Road No.1, Banjara Hills, Hyderabad.

                                        ...APPELLANT

VERSUS



$ The State of A.P.,
Rep by Public Prosecutor


                                      ...RESPONDENT



< GIST:

> HEAD NOTE:


!Counsel for Appellant: Sri P. Vishnu Vardhan Reddy
^Counsel for Respondent: Public
Prosecutor

? Cases referred
 THE HON'BLE SRI JUSTICE B.SESHASAYANA
REDDY
                 CRLRC No.48 of 2010
                   Date: 19.02.2010
Between:
M/s. Charan Medical Devices, though its Partner,
Rep by Kalyan Kumar, C.E.O.,
Flat No.502, Chandra Towers, Naveen Nagar,
Road No.1, Banjara Hills, Hyderabad.

Petitioner.

AND

The State of A.P.,
Rep by Public Prosecutor


Respondents.
     THE HON'BLE SRI JUSTICE B.SESHASAYANA
                          REDDY
                  CRLRC No.48 of 2010

JUDGMENT:

This revision is directed against the order dated 21.12.2009 passed in Crl.M.P.No.5550 of 2009 in Crime No.1201 of 2008 on the file of XIV Additional Chief Metropolitan Magistrate, Hyderabad, whereby and whereunder the learned Additional Chief Metropolitan Magistrate dismissed the application filed by the defacto- complainant under Section 204 (1) (b) Cr.P.C.

Back ground facts, in a nutshell, leading to filing of this Revision by the petitioner are:-

A report came to be presented by Mr.A.Kalyan Kumar, Chief Executive Officer of M/s.Charan Medical Devices, Banjara Hills, Hyderabad on 22.12.2008 at 23:30 hours alleging inter alia that their Company entered into an agreement with M/s. Biotronik Medical Devices India Private Limited, New Delhi and as per the agreement, they have to supply life saving products and payment has to be made after 90 days from the date of invoice. M/s. Biotronik Medical Devices India Private Limited demanded for bank guaranty from M/s. Charan Medical Devices and accordingly M/s. Charan Medical Devices had given bank guarantee for an amount of rupees one crore in Union Bank of India, Saifabad, Hyderabad. From the date of the agreement till 22.12.2008, M/s.Biotronik Medical Devices India Private Limited supplied the goods worth of Rs.3.22 crore to them. Subsequently, M/s. Charan Medical Devices came to know that M/s. Biotronik Medical Devices India Private Limited has over invoiced some products in their purchases. Several correspondences and communications went on between two companies. As on 22.12.2008, M/s. Charan Medical Devices requested with M/s.Biotronik Medical Devices India Private Limited to deduct the over invoiced amount from their payment and that M/s.Biotronik Medical Devices India Private Limited, without deducting the amount, claimed total invoice amount and thereby cheated the company.

A case in Crime No.1201 of 2008 under Sections 406 and 420 IPC came to be registered by S.H.O, Panjagutta Police Station. After a due investigation, the S.H.O., Panjagutta Police Station laid charge sheet in the Court of IV Additional Chief Metropolitan Magistrate, Hyderabad. The relevant portion of the charge sheet reads as hereunder:-

"The accused A-5 GunarJorg Wochnowski, Director of Biotronik Medical Devices India Pvt., Ltd., Native of Suite -2, Level -4, Building-2, 20, Bridge Street, Pymblen NSW 2073, Australia is an Australian National the accused A-6 Werner Braun, Director of Biotronik Medical Devices India Pvt., Ltd., Woemannkehrem 12359, Berlin Germany is a national of German. Both the accused will be arrested since they are not available in India."

It is evident from the charge sheet that the investigating officer deferred filing of supplementary charge sheet against A5 & A6.

The learned Magistrate took the original charge sheet on file as C.C.No.278 of 2009 against A1 to A4 and issued summons to them returnable by 18.6.2009. Subsequently, the police filed supplementary charge sheet against A5 and A6. The learned Magistrate returned the supplementary charge sheet on the ground that A5 and A6 have not been apprehended. The S.H.O., resubmitted the supplementary charge sheet whereunder a request has been made to issue NBW against the accused Nos.5 & 6. The learned Magistrate once again returned the supplementary charge sheet on the ground that the accused 5 & 6 have not been apprehended. Thereupon, the defacto- complainant filed Crl.MP No.5550 of 2009 under Section 204 (1) (b) Cr.P.C., to take the supplementary charge sheet on file and issue summons/warrant as the case may be. The learned Magistrate dismissed the application on the ground that Section 204 (1) (b) Cr.P.C., is applicable only to the private complaint. The said order dated 21.12.2009 passed in Crl.MP.No.5550 of 2009 is assailed in this revision.

Notice before admission came to be ordered on 20.01.2010. Learned Additional Public Prosecutor takes notice on behalf of the respondent-State.

Heard learned Senior Counsel Sri Padmanabha Reddy appearing for the petitioner and learned Additional Public Prosecutor appearing for the respondent. Learned Senior Counsel appearing for the petitioner submits that Section 204 Cr.P.C., does not make any distinction between the private complaint and the police complaint. What all it states is that issue of process on the cognizance of the offence being taken by the Magistrate.

Learned Additional Public Prosecutor does not dispute the applicability of the Section 204 Cr.P.C., to both private cases as well as police cases.

Section 204 Cr.P.C reads as hereunder:- "Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be: -

(a) a summons-case, he shall issue this summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-

section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law or the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this Section shall be deemed to affect the provisions of Section

87."

A plain reading of the above referred indicates that in the opinion of the Magistrate taking cognizance of the offence, there is sufficient ground for proceeding, and the case appears to be a summons-case, he shall issue summons to the accused and a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before the said Magistrate.

The learned Magistrate cannot return the

supplementary charge sheet on the ground that the accused are not apprehended. Indeed, in the

supplementary charge sheet, the S.H.O., Panjagutta Police Station requested for issuance of NBW. Such is

the situation, the order impugned in the revision cannot be sustained and accordingly, the same is hereby set aside

and consequently, the Crl.MP.No.5550 of 2009 stands allowed.

_______________________________________ JUSTICE B. SESHASAYANA REDDY Date:19.2.2010 LR Copy to be marked.

B/O mrb Hence, it is prayed the Honoruable Court a separate chargesheet will be filed after arrest before issuing red corner notice to Interpol for bringing them before the court. The Board Director by name St.SamitaBasu Ray has resigned from the Directorship of M/s Biotronik Medical Devices India Pvt., Ltd. On 31.07.2007 and she is not concerned in this case."