Delhi District Court
Albert Scott vs . on 9 May, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0036892012
CR NO: 13/12
Albert Scott
vs.
State
U/s 3 of RPUP Act
CC No. 30/00
PS RPF /DKJ
IN THE MATTER OF
Albert Scott
S/o Charles Scott
R/o 1/7123, Vishnu Marg
Delhi ....Revisionist / accused
Vs.
State ........ Respondent
Revision against the impugned order dated 29.6.2011 DATE OF INSTITUTION : 25.01.2012 DATE OF FINAL HEARING : 09.05.2012 DATE OF FINAL ORDER : 09.05.2012 ORDER ON REVISION
1. This revision has been preferred by accused against the order of Ld. Magistrate dated 29.6.2011 whereby charge was framed against revisionist for commission of offence punishable U/s 3 of Railway Property (Unlawful Possession)Act, 1966.
2. I have heard arguments of Ld. Counsel Sh. Ld. Counsel Sh. Ravinder Chadha Advocate for revisionist / accused as well as Ld. Addl. PP Sh. Prthvi Singh for RPF . I have also carefully perused the revision file as well as TCR.
3. Brief facts necessary for disposal of this revision, as per complainant preferred before Ld. MM, are that on 29.4.2000 on receipt of a secret information at around 8.30pm a nd team of RPF Officials conducted raid at 2 floor of 142/22, Katra Masroo Dariban Kalan, Page 1 / 7 of Order on Revision Albert Scott Vs. State dt.09.05.2012 2 Delhi6 , there they found 6 persons namely Radheyshyam Gupta, Mahender Parkash, Albert Scott, Lalit Kumar , Shiv Kumar and Bhagwan Singh present. Mahender Parkash was found preparing Parcel Way Bill (PW Bill) , Shiv Kumar was found preparing Foreign Parcel Way Bill, Bagwan Singh and Albert Scott were found separating PW Bill Account Foil . Radhey Shyam Gupta and Amit had forwarding notes in their hands and were getting the PW Bill prepared. Mahender Parkash was found possessing PW Bill Books having 16 leaf which belongs to Railways. Shiv Kumar was found possessing Foreign PW Bill Book containing 50 leafs. Other persons were also carrying similar Railway Bill Books apart from a Book containing Alphabetical List of Railway Stations in India and numerous other Railways property like time table , attendance register carrying names of the above six persons and other persons, summary book of railway city booking agency, cash book and other documents. Raiding party found these articles to be stolen Railway property qua which six accused persons could not furnish any satisfactory explanation. The property was seized and statements of all the six accused persons were recorded wherein they conceded to commission of offence U/s 3 of RP (UP) Act .
4. On 3.5.2000, accused Shiv Kumar, Bagwan Singh and Mahender conceded that they retired from Railways as Head Parcel Clerk, Chief Parcel Supervisor and Parcel Clerk respectively and they have been visiting above office of accused Radheyshyam Gupta for preparing PW Bills on the documents brought by another ExRailway employee Albert Scott from a City Booking Agency at Subzi Mandi, Delhi namely M/s Madan Lal Page 2 / 7 of Order on Revision Albert Scott Vs. State dt.09.05.2012 3 Jaggi & Sons . The forwarding notes were brought by Radheyshyam Gupta and Amit Kumar and according to them the above trio used to prepare PW Bills on behalf of M/s Madan Lal Jaggi & Sons, a DLSM City Booking Agency. They also conceded that they were aware that no City Booking Agency can add a partner for preparation of PW Bills without permission of Railway Administration and also that they can not sub contract / sub lease the Railways Goods Booking Agency. The trio conceded that they were aware that Radheshyam had no contract in his name to book Railways Goods. Similar disclosures were made by other accused persons. It was also disclosed that the blank PW Books were procured by them from Ms Renu Bala who was employee of M/s Madan Lal Jaggi & Sons and that this operation had been going on for last around one year and the whole show was being run under a written agreement with J.B.Jaggi , owner of M/s Madan Lal Jaggi & Sons .
5. On 4.5.2000 accused Radheyshyam Gupta got recovered the said agreement from his Ghaziabad House which was dated 4.3.1998 and valid for two years. This accused also pointed out certain consigned goods booked by him which was lying at Railway Parcel Godown, Delhi .
6. On 5.5.2000, he led the RPF Officials to M/s Madan Lal Jaggi & Sons and identified Ms. Renu Bala who in turn gave a statement to the effect that in consonance with direction given by her employer Sh.J.B.Jaggi , she used to issue blank PW Bill to Albert Scott against his signature in a register. It is case of the RPF that out of several hundred blank PW Bill Book issued by Railway to M/s Madan Lal Jaggi & Sons, its Page 3 / 7 of Order on Revision Albert Scott Vs. State dt.09.05.2012 4 owner J.B.Jaggi illegally parted with them by handing them over to Radhey Shyam Gupta through Albert Scott .
7. On 5.5.2000 and 12.8.2000 , accused J.B.Jaggi was joined in the investigation wherein he conceded to have directed to his employee Renu Bala to part with blank PW Bills to accused Radheyshyam Gupta and his associates. He conceded to have entered into an agreement with Radheyshyam Gupta but he failed to produce any authority or permission from Railway Administration to sub contract the Agency to Radhey Shyam Gupta. As per complaint the act of J.B.Jaggi to part with Railway Property including blank PW Bills and other list of Railway Station etc amounts to commission of offence punishable U/s 3 of RP (UP) Act. Hence the criminal complaint was filed.
8. After filing of the complaint, Ld. Magistrate summoned all 7 persons as accused. RPF examined 13 witnesses at the pre charge stage . Before the charge could be framed summoned accused namely Mahender Parkash, Amit Kumar and Shiv Kumar expired and proceedings qua them were abated.
9. After hearing both the sides, vide the order impugned under this revision charge was framed against all the 4 accused including the revisionist in hand. Hence this revision.
10.At the onset upon being asked it is conceded by both the sides that vide bilateral contract dated 1.12.1984 Indian Railways appointed M/s Madan Lal Jaggi & Sons , a Partnership Firm , as DLSM, City Booking Agency, Delhi Subzi Mandi. This bilateral contract was renewed repeatedly and is valid even on this date. This elaborate contract running into 18 pages contain 26 clauses. In clause 8 it only talks of that the Page 4 / 7 of Order on Revision Albert Scott Vs. State dt.09.05.2012 5 rd contractor can not assigned or sublet contract to a 3 party without written consent of Railway Administration." Same is reproduced here under for ready reference.
8.The contractor shall not establish or undertake, directly or indirectly, any other agency for the conveyance of packages during the continuance of this Agreement, which in the opinion of the Railway administration may constitute a service in competition with and to the detrimeut of Railways. The contractor shall not at any time assign or sublet or make over or make any attempt directly or indirectly to assign or sublet or make over this contract or any part thereof or any interest therein, or any benefit to be derived or any sums to be said thereunder to any person or persons whomsoever nor shall they take or admit any fresh partner or partners in this contract, or dissolve the partnership, without the consent in writing of the Railway Administration for the purpose first bad and obtained."
11.Plain reading of this clause reveals that it nowhere provides that any breach of this clause would tantamount to commission of an offence making the violator liable to criminal prosecution. Further perusal of this agreement shows that there is also an indemnity clause which only talks of indemnifying Monetarily the Railway Administration in case of any loss on account of breach of the contract. For ready reference Clause 11 is reproduced hereunder:
11.The contractors shall indemnify and keep the Railway Administration indemnified in respect of all claims that may be made in respect of loss of life or injury or accident or damage to property or otherwise that may occur in the carrying out or performance of this agreement.
12.Further page 7 clause 18 of the agreement reveals that in case of breach , the Railways are authorized to determine the agency with a 6 months advance notice.
Upon being asked Ld. APP conceded that M/s Madan Lal Jaggi & Sons still continues to be authorised DLSM for Railway. Court is apprised by Ld. Defence Counsel that after the said raid , Railway Administration issued a simple show cause notice seeking explanation only for irregularities ( and not illegality or offences) . The notice was duly Page 5 / 7 of Order on Revision Albert Scott Vs. State dt.09.05.2012 6 replied and M/s Madan Lal Jaggi & Sons and after this the firm was simply imposed a cumulative Rs.10,000/ fine on different counts. This appears to be well in consonance with clause 18 (b) (iii) which provides " Contractor to pay penalty for breach of agreement etc."
13.Once the bilateral contract between the parties does not provide that any such breach would tantamount to commission of a criminal offence and the contractor has already been dealt with and penalised for claimed commission of breach on agreement , I see no reason as to why the contractor shall be criminally prosecuted further in the matter , more so when it is not provided so.
14.The admitted contract in question which continues to be renewed after every two years since 1984 for last more than 25 yrs , is per se a business contract. It is a self contained contract and by virtue of Section 92 and 93 of Evidence Act , its clauses and effects of its clauses can not be varied unilaterally by addition or alteration by either of the parties .
15.At this juncture attention of this Court is drawn by Ld. APP to internal latter dated 10.5.2000 by Chief Commercial Manager, Railway but even this letter does not show that it has authorised RPF to criminally prosecute the accused. Be that as it may such like unilateral letter, even if it contain an order of prosecution, are of no avail to the RPF or the Railways in so far as it would not be in consonance to bilateral agreement penned by both the sides. Attention of this Court is also drawn by Ld. Defence Counsel to letter of Sr. Divisional Commercial Manager, Northern Railway dated Page 6 / 7 of Order on Revision Albert Scott Vs. State dt.09.05.2012 7 24.11.2000 no. SCD /134/27/ Pt.1 whereby the above said penalty of Rs.10,000/ was imposed upon M/s Madan Lal Jaggi & Sons, this letter only talks of "irregularity" and there is not even a whisper of any finding or an observation that M/s Madan Lal Jaggi & Sons or any other accused deserves to be prosecuted in a Criminal Court as well. Once an Officer as Senior as Sr. Divisional Manager does not find any breach of the Bilateral Business Agreement which can be said to be criminal, I see no reason as to why RPF decided to prosecute the accused persons . There is nothing on record to show if any Legal Opinion qua commission of any criminal offence in respect of irregularity or breach in the bilateral Business Agreement was ever sought before launching of this prosecution.
16.On account of this lackadaisically ill conceived prosecution , the revisionist and the other coaccused had to undergo rigors of trial for more than a decade despite the fact that they appear to have not committed any criminal offence at all. In view of this, the impugned order of Ld. Magistrate dated 29.6.2011 can not be sustained both in facts and law and same is hereby set aside.
17.This revision accordingly stands allowed/ Revisionist is hereby discharged. His bail bond / surety bond shall be deemed canceled after expiry of period of 6 months U/s 437 A Cr.P.C. Revision file be consigned to RR. TCR be sent back with copy of this order. ANNOUNCED AND DICTATED IN OPEN COURT ON : 9.5.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 7 / 7 of Order on Revision Albert Scott Vs. State dt.09.05.2012