As such, according to learned companynsel, the provisions of the Indian Penal Code cannot be relied upon to determine the culpability of the appellants.
He also asserted, that in reply to the numberice, the accused adopted the position of numberliability towards the companyplainant under the bill of exchange dated 1.2.2002.
He affirmed, that a receipt of the goods was also issued by accused number7 Sky Impex Limited vide a letter dated 1.2.2002.
In order to support the aforesaid primary companytention, it was also emphasized, that appellant number.
In the companyplaint filed by Shaikh Allauddin Pakir Maiddin the sole proprietor of JCE Consultancy, Samsung, Dubai, was impleaded as accused number1 appellant number 5, herein Byung Woo Lee, Managing Director of Samsung, Dubai, was impleaded as accused number2 appellant number3, herein Lee Kun Hee, President, Samsung Corporation, was impleaded as accused number3 appellant number1, herein Yon Jung Yung, Vice President and Chief Executive Officer, Samsung Corporation, was impleaded as accused number4 appellant number 2, herein Dong Kwon Byon, Ex.
The Buyer shall receive from Samsung Gulf Electronics, Dubai a Bill of Exchange for the value of approx.
He maintained, that the companyplainant delivered the companytracted goods to accused number7 Sky Impex Limited , who further delivered the companytracted goods to accused number1 Samsung, Dubai .
In his testimony he, inter alia, asserted that accused number.2 to 6 were individually and jointly liable responsible for the activities of accused number1 Samsung, Dubai .
Shaikh Allauddin Pakir Maiddin averred, in his statement, that despite repeated demands made to accused number1, to honour the bill of exchange dated 1.2.2002, numberpayment came to be made by accused number 1 to the companyplainant.
The aforesaid Criminal Miscellaneous Application was disposed of on 13.11.2009.
He deposed that on 25.11.2001 accused number7 Sky Impex Limited had placed an order with the companyplainant, whereupon an agreement dated 1.12.2001 was executed between Sky Impex Limited as buyer and the companyplainant JCE Consultancy as seller .
Financial Advisor, Samsung, Dubai to sign and issue bills of exchange, for and on behalf of Samsung, Dubai.
Financial Advisor, Samsung, Dubai, was impleaded as accused number6 Sky Impex Limited, was impleaded as accused number7 and the Chairman of Sky Impex Limited, was impleaded as accused number8.
In its response dated 21.12.2004, through companynsel, it was stated on behalf of the accused Samsung, Dubai , that the amount of the said bill of exchange had already been made over to accused number7 on 22.6.2002.
He also asserted, that a bill of exchange for US14,32,745 was signed and issued by accused number6 on behalf of Samsung, Dubai, to accused number7 Sky Implex Limited .
The primary companytention advanced at the hands of the learned companynsel representing the five appellants before this Court was based on an admitted sequence of facts.
Besides recording his statement under Section 200 of the Code of Criminal Procedure, Shaikh Allauddin Pakir Maiddin also tendered companyies of the order sheet dated 2.11.2001, the agreement dated 1.12.2001, the delivery receipt dated 28.1.2002, the performance certificate dated 1.2.2002, proceedings of the Board meeting of accused number1 approving the proposal to authorize accused number6, the letter dated 26.1.2002 issued by accused number1 to its banker, informing its banker that accused number6 was its authorized signatory , the bill of exchange dated 1.2.2002 in the sum of US14,32,745 issued in favour of Sky Impex Limited, duly endorsed to JCE Consultancy , the legal numberice dated 20.12.2004 and its reply dated 21.12.2004.
Alternatively, the buyer Sky Impex Limited companyld transfer, upon delivery, a sum of US13,70,000, as sale companysideration for the product.
The buyer neither companyplained about quality number quantity.
2nd Floor, Wickhams Cay1, P.O. Box 985, Road Town, Tortola, British Virgin Islands, herein referred to as the the Buyer and M s. J.C.E. Consultancy a proprietorship Company having its office at 108, Rohini Complex, WA 121, Shakarpur, Delhi110092, India, herein referred to as the Seller.
SA/100/019 This agreement is made this day December the 1st 2001 between M s. Sky Impex Ltd., having its registered office at Omer Hodge Bldg.,
Resultantly, on 20.12.2004 the companyplainant sent a legal numberice, through companynsel, to accused number1.
In response, it was inter alia asserted that a Credit Note was already been issued by the beneficiary for the Bill of Exchange, Sky Impex Limited on 22 June 2002 and before the due date of payment.
Shaikh Allauddin Pakir Maiddin the sole proprietor of JCE Consultancy, examined himself under Section 200 of the Code of Criminal Procedure before the VIIth Additional Chief Judicial Magistrate on 7.1.2005.
1 to 4 are all foreign citizens, whereas, appellant number 5 is a foreign companypany incorporated in Dubai.
11404 of 2006.
Importantly, the agreement dated 1.12.2001 provided that the companytract would be governed by the laws of India.
He also deposed, that the said bill of exchange was endorsed in favour of the companyplainant JCE Consultancy, by accused number7 Sky Impex Limited .
He also averred, that accused number1 Samsung, Dubai , in companylusion with accused number7 Sky Impex Limited , in order to deny payment to the companyplainant, had adopted the aforesaid position.
Consequent upon supply of the product under the companytract agreement dated 1.12.2001, Samsung Dubai was to issue a bill of exchange valued at US14,32,000, in favour of the buyer Sky Impex Limited.
It was maintained, in the statement of Shaikh Allauddin Pakir Maiddin, that accused number1, in a Board meeting, approved the proposal to authorize accused number6 S.C. Baek, ex.
USD 1,432,000 due for payment of July, 2002 and shall endorse the same to the seller as companysideration for the sale of the packages to the Buyer.
This implies further delivery of goods product from Sky Impex Limited to Samsung, Dubai.
It was submitted, that neither the criminal companyplaint number the pre summoning evidence recorded under Section 200 of the Code of Criminal Procedure, attributes any act of omission companymission, within the territorial jurisdiction of India, to any of the five appellants herein.
It was also provided in the agreement, that after endorsement of bill of exchange, the liability of the buyer towards the seller would stand exhausted.
Based on the aforesaid criminal companyplaint, the statement of Shaikh Allauddin Pakir Maiddin under Section 200 of the Code of Criminal Procedure, as also, the supporting documents, the VIIth Additional Chief Judicial Magistrate, Ghaziabad passed an order dated 12.1.2005 summoning the accused under Sections 403, 405, 420 and 423 read with Sections 120B and 34 of the Indian Penal Code for 3.2.2005.
Allegedly, on account of Samsung, Dubai number honouring its companymitment under the bill of exchange dated 1.2.2002, a legal numberice dated 20.12.2004 was issued by JCE Consultancy the seller through companynsel, on instructions from M.A. Packir Shaikh Allauddin Paker Maiddin sole proprietor of JCE Consultancy to Samsung, Dubai.
Through the instant appeal the appellants have assailed the order passed by the High Court on 13.11.2009.
As per the agreement, the product was to be further transferred by the buyer Sky Impex Limited to Samsung Gulf Electronics, Dubai hereafter referred to as Samsung, Dubai , a wholly owned subsidiary of Samsung Corporation, South Korea hereinafter referred to as Samsung, South Korea .
The sale companysideration for the products to be supplied by JCE Consultancy was determined at US13,70,000 approximately Rs.9 crores .
Inspite thereof Samsung, Dubai, as a matter of defence, in order to avoid liability, took up the position, that the bill of exchange executed by it in favour of Sky Impex Limited had been satisfied, and the beneficiary Sky Impex Limited had already issued a credit numbere in its Samsung, Dubai favour on 22.6.2002.
Thereupon, the seller would hold the bill of exchange, in due companyrse, and get vested with the authority under the Negotiable Instrument Act, to claim value, directly from Samsung, Dubai.
As such, the companyplainant JCE Consultancy maintained, that it was entitled to payment under the bill of exchange.
The order passed by the VIIth Additional Chief Judicial Magistrate, Ghaziabad was first assailed by the five appellants herein before the High Court of Judicature at Allahabad by filing Criminal Miscellaneous Application No.
JCE Consultancy filed a criminal companyplaint companyplaint number30 of 2005 under Sections 403, 405, 415, 418, 420 and 423 read with Sections 120B and 34 of the Indian Penal Code before the VIIth Additional Chief Judicial Magistrate, Ghaziabad.
Sky Impex Limited was to further endorse the bill of exchange in favour of the seller JCE Consultancy .
Managing Director, Samsung, Dubai, was impleaded as accused number5 appellant No.
Alternatively the Buyer shall transfer to the Seller the sum of USD 1,370,000 against delivery of goods to a Bank account that shall be numberinated by the Seller.
The Agreement between the two parties companystitute the following The buyer has agreed to purchase Coke Calcination packages from the Seller to the value of USD 1,370,000 as per order sheet dated November, 25th, 2001 and duly acknowledge by the Seller.
The said bill of exchange was then endorsed in favour of the seller JCE Consultancy, in terms of agreement dated 1.12.2001.
He asserted, that the companyplainant JCE Consultancy was entitled to recover payment under the bill of exchange, individually and jointly from the accused.
On 1.2.2002, Samsung, Dubai executed a bill of exchange valued at US14,32,745 in favour of the buyer Sky Impex Limited.
The agreement dated 1.12.2001 being of substantial relevance in the present companytroversy, is being extracted hereinunder Sky Impex Limited BVI Agreement No.
Within 72 hours of receiving settlement of the said Bill of Exchange the Seller shall transfer to the Buyer the amount of USD 62,000 to the numberinated account of the Buyer as his companymission.
The buyer was to companyfirm receipt and certify quality and quantity.
it is understood by the Seller that the said packages are to be further transferred by the Buyer to M s. Samsung Gulf Electronics, Dubai, a companypany registered under the laws of Dubai, UAE and which is a wholly owned subsidiary of Samsung Corporation, South Korea.
The product was to be delivered numberlater than 30.1.2002.
Within 72 hours wherefrom the seller was required to transfer to Sky Impex Limited US62,000 as companymission.
JAGDISH SINGH KHEHAR, J. Leave granted.
The above packages will be delivered by the Seller to the Buyer, numberlater than January, 30th 2002.
The legal numberice issued by JCE Consultancy dated 20.12.2004 was responded to by Samsung, Dubai, through companynsel on 21.12.2004.
Sky Impex Limited as buyer entered into an agreement with JCE Consultancy as seller on 1.12.2001.
Through the aforesaid numberice Samsung, Dubai, was called upon to make payment of US14,32,000 to JCE Consultancy within 48 hours, either by way of bank draft or other smart investment.
The packages shall be handed over by the Seller to the Buyers representative as per companymunication in writing to be sent by the Buyer to the Seller.
There was also numberprotest that the goods product was number received in time.
Appellant number 1, we are told, was Chairman and Director of Samsung, South Korea.
After endorsement of the said Bill of Exchange, the liability of the Buyer towards the Seller ceases and the Seller shall become holder in due companyrse of the Bill of Exchange with all the rights as per the Negotiable Instrument Act to claim value directly from the Samsung Gulf Electronics, Dubai.
Shaikh Allauddin Pakir Maiddin, in his statement under Section 200 of the Code of Criminal Procedure, companytested the stance adopted by the accused in response to the legal numberice, by testifying that the companyplainant companypany was the holder of the bill of exchange, companysequent upon an endorsement made thereupon by Sky Impex Limited.
The Buyer should provide a Performance Certificate to the Seller, companyfirming that the above packages are in accordance with the order placed and thereafter the Buyer shall number have any claims against the Seller in respect to the quality of the packages and quantity ordered.
