-Memorial on behalf of Respondent -

Ritesh Jain (SAP ID: - 500012398)

University of Petroleum and Energy Studies College Of Legal Studies, Dehradun

In the Honble High Court Of Calcutta Case Concerning, Section 406, 409 and 420 of the Indian Penal Code and Section 148 of Indian Contract Act

In the matter of Abdul Sobur On behalf of his firm M/s. Narayanpur Agri and Agricultural Development Project, Burdwan (Petitioner) -VsM.M.T.C. Ltd, Calcutta (Respondent)

On Submission to the Honble High Court Of Calcutta in the Year 2011

Memorandum On Behalf Of Respondent M.M.T.C. Ltd

DRAWN AND FILED BY THE COUNSEL FOR RESPONDENT

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-Memorial on behalf of Respondent -

TABLE OF CONTENTS

Index Of Authorities Table of Cases Books Weblinks Statutes List Of Abbreviation Statement Of Jurisdiction Synopsis Of Facts Issues Raised Summary Of Arguments Pleadings Prayer

-Memorial on behalf of Respondent -

INDEX OF AUTHORITIES

BOOKS

1. Contract Law, By Mulla 2. Indian Penal Code, By Tandons 3. Indian Penal Code, By R A Nelsons STATUTES

1. 2. 3. 4.

Section 405 of Indian Penal Code Section 406 of Indian Penal Code Section 409 of Indian Penal Code Section 420 of Indian Penal Code

WEBLINKS

1. www.indiakanoon.com 2. www.manupatra.com 3. www.legalservicesindia.com

-Memorial on behalf of Respondent -

LIST OF ABBREVIATIONS

1. AIR 2. Honble 3. IPC 4. HC 5. Sec 6. Vs. 7. CrPC 8. Section a(b) 9. And 10. Bom 11. Ed. 12. i.e. 13. Ors 14. Cr LJ 15. Raj. 16. Pat.

: : : : : : : : : : : : : : : :

All India Report Honourable Indian Penal Code High Courts of India Section Versus Code Of Criminal Procedure Section A Clause B & Bombay Edition That is Others Criminal Law Joural Rajasthan Patna

-Memorial on behalf of Respondent -

STATEMENT OF JURISDICTION

The Respondent hereby, most humbly and respectfully submits the memorandum for an appeal regarding a Civil cum Criminal Suit in the Honble High Court Of in response to the suit filed by the Petitioners and would like to request the court to consider the respondents request under Article 226 of the Constitution of India to file the suit in front of Honble High Court.

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STATEMENT OF FACTS

1. M.M.T.C. Ltd. is a Government of India undertaking having its office inter alia at

Ruby House, India Exchange Place, Calcutta.

2. The petitioner Abdul Sobur was the proprietor of M/s. Narayanpur Agri and

Agricultural Development Project having its office at Burdwan.

3. M.M.T.C. entered into an agreement for handling agency with the petitioner on June

26, 1996.
4. On perusal of the agreement it appears that M.M.T.C. was in need of a storage space

in Burdwan from where they could distribute fertilizer to the farmers. Under the agreement petitioner was to provide storage space where M.M.T.C. would keep the fertilizer under care of the petitioner. Petitioner would act as handling agent and would deliver fertilizer from their godown to the customers of M.M.T.C. as per the delivery orders issued by M.M.T.C. In turn, petitioner would get commission as per the agreement. There were other terms and conditions that the parties were to fulfil under the agreement.
5. Petitioner failed to furnish stock statement as required under the agreement and

thereby misappropriated the fertilizers provided by M.M.T.C. to the petitioner for the purpose of keeping the same in trust and, in turn, deliver the same to the customers of M.M.T.C.

6. Petitioner would get commission as per the agreement. There were other terms and

conditions that the parties were to fulfill under the agreement.

7. M.M.T.C. alleges that the petitioners failed to furnish stock statement as required

under the agreement and thereby misappropriated fertilizer provided by M.M.T.C. to the petitioner for the purpose of keeping the same in trust and, in turn, deliver the same to the customers of M.M.T.C.

8. M.M.T.C. lodged a complaint with the Police under Section 406, 409, 420 of the

Indian Penal Code.

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9. The complaint was lodged on November 21, 1997. The charge sheet was submitted on

January 24, 1999. The charges were ultimately framed by the learned Magistrate and trial commenced. At that stage, petitioner approached the learned Judge for his discharge by making an application. The learned Judge vide order dated May 18, 2010 rejected the said application filed on December 15, 2008 by observing that there were sufficient materials against the accused persons for presuming that he had committed an offence punishable under Section 409 read with Section 34 of the Indian Penal Code. Alternatively, they might be charged under Section 406/420 thereof as framed against them. The learned Judge of the special Court fixed dates of the trial, accordingly trial commenced.

-Memorial on behalf of Respondent -

ISSUES RAISED

is there a bailment bet. the parties? Is there a misappropriation of fertilizer just because he did not submit the stock statemnt?

-Memorial on behalf of Respondent -

ARGUMENTS
Against a single transaction there might be civil as well as criminal liability. Hence, initiation of civil action would not create any bar in proceeding against the petitioner before the criminal court. The FIR was lodged in 1997. The petitioner did not raise any objection at that stage. It was only that when the trial was about to commence the petitioner approached the court and learned judge was right in rejecting the application. Alleged part payment relied on by the petitioner were on account of proceedings initiated under section 138 of the Negotiable Instruments act pending before the criminal court as would appear from thy petitioners letter dated august 27, 2010. This was a different transaction hence no reliance could be placed thereupon. The instant cause of action arose from a breach committed under the agreement dated june 27, 1996 which constituted both civil and criminal liability and MMTC was entitled to adopt both the courses.(section 151, 53 and 154 of Indian contract act 872 for civil liability )(section 34, 406, 409 and 420 of IPC for criminal proceeding)

Section 34, 306, 309 and 420 of Indian penal code state: Section 34 Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Section 406 . Punishment for criminal breach of trust- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 409 Criminal breach of trust by public servant, or by banker, merchant or agent Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 420 Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

-Memorial on behalf of Respondent -

Section 138 of negotiable instruments act states: Section 138 Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for 2["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Section 151, 153 and 154 on Indian contract act states: Section 151 In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 153 A contract of bailment is avoidable at the option of the bailor, if the bailee does any ad with regard to the goods bailed, inconsistent with the conditions of the bailment. Section 154 If the bailee makes any use of the goods bailed, which is not according to the conditions of the bailment, he is liable to make compensation to the bailor for any damage arising to the goods from or during such use of them. THUS WE CONCLUDE THAT MY CLIENT HAS ALL THE RIGHTS TO GET THE AWARD MONEY AND ALSO THE PETITIONER BE TRIALED UNDER CRIMINAL OFFENCES RESPECTIVELY AS HE HAS BREACHED LAW UNDER CERTAIN SECTIONS OF IPC .

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-Memorial on behalf of Respondent -

PRAYER:-

In the light of arguments advanced and authorities cited, the counsel for the respondent humbly pray before the Honble Court to kindly adjudge and declare: That to quash the suit filed by the plaintiff in the Honble Court of law since there is no valid contarct between the plaintiff and the respondent That there was no consideration on the part of plaintiff. That pass any other appropriate order which the court may deem fit in the light of justice equity and good conscience

For this act of kindness, the Respondent shall duty bound, forever pray.

Dated:- 10th April 2011 Place:- Calcutta

Signature of Respondent

I know the Respondent Signature Of the Counsel For Respondent (Adv. R.K Jain)

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