Calcutta High Court (Appellete Side)
Shri Sitaram Agarwal & Ors vs The State Of West Bengal on 16 December, 2009
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
C.R.R. No. 2518 of 2009
Shri Sitaram Agarwal & Ors.
versus
The State of West Bengal
For Petitioners : Mr. Sudipto Moitra
Mr. Jyotirmoy Adhikary
For State : Mr. Swapan Kumar Mallick
Heard On : October 22nd, 2009.
Judgment On : 16-12-2009.
The present petitioners along with others were arraigned as accuseds in
connection with Malbazar Police Station Case No. 118 of 1998 and after
completion of investigation police submitted charge-sheet under Sections
406/409/418/420/477A/120B/109 of the Indian Penal Code against them.
When the petitioners moved the Trial Court for their discharge, however the Trial Court rejected their prayer for discharge and framed charge against them for the self-same offence for which they were charge-sheeted.
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The order rejecting the prayer for discharge and the order of framing of charge are the subject matter of challenge in the instant criminal revision.
2. Mr. Sudipto Moitra, the Learned Counsel in support of this application urged the following points;
(a) No prima facie case of the alleged offences for which charge has been framed has been made out.
(b) There was neither any entrustment nor any dishonest misappropriation of property by the petitioners.
(c) The dispute if any is civil in nature and arising out of a contract of excavation and at best amounts to a breach of contract.
(d) There is an arbitration clause contained in the agreement pursuant to which the excavation works was undertaken.
(e) Before filing of the FIR the complainant took recourse to the arbitration proceedings, however the award was in favour of the petitioners.
(f) The subject matter of the criminal case as well as the arbitration proceedings are identical.
(g) The FIR was lodged nearly one month after the complainant referred the dispute for arbitration.
(h) The charge-sheet has been submitted two months after the award of arbitration was decreed.
Mr. Moitra in support of his submission relied on the following decisions;
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(i) Superintendent and Remembrancer of Legal Affairs, W.B. Vs. Mohan singh & Ors., reported in AIR 1975 SC 1002, (ii) Thelapalli Raghavaiah Vs. Station House Officer & Ors., reported in (2007) 2 C Cr LR (SC) 59, (iii) Anuran Rastogi & Ors. Vs. State of U.P. & Anr., reported in (2007) 2 C Cr LR (SC) 64, (iv) Bal Kishan Das Vs. P.C. Nayar, reported in AIR 1991 SC 1531, (V) Misri Lal Vs. Tota Ram, reported in 1984 Cri. L. J. 1338, (vi) Commissioner of Income Tax, Mumbai Vs. Bhupen Champak Lal Dalal & Anr., reported in JT 2001 (3) SC 271, (vii) S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr., reported in (2007) 4 SCC 70, (viii) Shri Abhash Chandra Dey Vs. Shri Durga Sah, reported in (1989) 1 Gauhati Law Reports 78.
On the other hand Mr. Swapan Kumar Mallick vehemently opposed and resisted this criminal revision and submitted earlier some of the accused persons against whom charge has now been framed based on the self-same charge-sheet moved a criminal revision being C.R.R. No. 1880 of 2005 before this Court invoking Section 482 of the Code for quashing of the charge-sheet and this Hon'ble Court after considering the matter on merits dismissed the said criminal revision holding that on the evidentiary material collected by the police during investigation the alleged offences against the accused persons have been made out. He further submitted aggrieved by the said order a Special Leave Petition was moved before the Hon'ble Supreme Court when the Hon'ble Supreme Court rejected the said Special Leave Petition and gave liberty to the parties to raise all contentions at the time of framing charge. Thus, according to Mr. Mallick it is not open to the petitioners to raise the same question that on the charge-sheet 4 materials no offence has been made out when this Hon'ble High Court after meticulous examination of the charge-sheet materials found that on such materials offence has been made out and such findings of this Hon'ble Court has been upheld by the Apex Court. Mr. Mallick produced the Case Diary and submitted that police during investigation has collected sufficient materials which clearly reveals the involvement of the petitioners in the commission of alleged offences for which charge has been framed and as such the framing of charge is fully justified. Mr. Mallick lastly submitted that availability of a civil remedy and even the availing of the civil remedy is no bar in institution of a criminal case on the same set of facts. Mr. Mallick in support of his submission relying on the following cases;
(i) Rajinder Prasad Vs. Bashir & Ors., reported in 2002 Cri. L.J. 90,
(ii) Punjab & Sind Bank Vs. Vinkar Sahakari Bank Ltd. & Ors., reported in 2002 Cri. L.J. 93, (iii) K. Ashoka Vs. N. L. Chandrashekar & Ors., reported in (2009) 2 SCC (Cri) 730, (iv) Rumi Dhar (SMT) Vs. State of West Bengal & Anr., reported in (2009) 2 SCC (Cri) 1074, (v) K. G. Premshanker Vs. Inspector of Police & Anr., reported in 2003 SCC (Cri) 223.
3. Having gone through the Case Diary more particularly the evidentiary materials collected by the police and the prosecution proposed to rely against the petitioner and others during the trial, I am unable to accept the contention of the learned advocate of the petitioners that no case has been made out against the petitioners thereupon. The following facts, elicited from the 5 evidentiary materials collected during investigation clearly shows that framing of charge is fully justified.
4. The case at hand was commenced on the basis of a First Information Report recorded on the allegations that a public money to the tune of Rs. 2.53 crores and odd was misappropriated by the contractors in collusion with the officers attached to the office of the Superintending Engineer, Teesta Barrage Circle Irrigation and Waterways Directorate, Government of West Bengal, in course of work of excavation and lining of Teesta Jaldhaka Main Canal from chainage of 3.00 kilometer to 3.62 kilometer against Tender No. 89/TBC of 1995/1996 by manipulating measurement book, R.A. Bill etc. and showing false expenditure.
5. During investigation the police found as follows;
(a) The subsequent claim of the accused persons arising out of difficulties they faced during execution of the work was allowed, although not permissible in terms of the tender.
(b) In the measurement book some measurements in respect of Access Road and for construction of Ramps have been recorded dishonestly and with a motive to give an undue facility to the accused persons, in violation of specific terms of the contract. The contractor was not entitled to receive any payment against the same.
(c) According to the tender main item of the work was "Earth in excavation in all kinds of soil by Hydraulic Excavator and loading into tippers including transporting unloading with all lifts both ways, throwing the spoil 6 where necessary in layers of 25cms., compacting the earth after dozing by D-8 dozer of other appropriate type of machineries in optimum Moisture content including cost of employing labour and machineries tools and plants etc. complete, making banks including setting out profile, dugbelling and making berm as per profile, watering compacting, dressing chilchalling flanks or slope of embankment including filling with earth or cutting up to 150 mm average thickness and complete as per direction of Engineer-in-charge", but the accused had just transported earth and thrown the same at random and haphazardly.
(d) On scrutiny of the measurements of the Tender Items No. - 6 and other supplementary Tender Items being Item 1 of 4th Supplementary Tender etc. that the heights of the stacks have been all through, from 1.5 Meters to 2.8 Meters or even more. Further, in all the cases, the voids have been shown to have been deducted. This is enough evidence that, neither any dozer nor any roller was used and the earth work was done in violation of the clear terms of not exceeding 25 cms, for each layer, though the description of the Tender item No. 6 or item 1 of 4th supplementary Tender, has been written in the measurement Book as it was in the tender.
(e) The measurements of the loose heaps of carried earth had no geographical identity enabling no body to verify at any later time, whereas, the sectional measurement are taken and recorded with respect of the geographical identification of the long section, being the chainage, having permanent marking drawn on the Mouza Sheets and any sectional measurement, with reference to any particular chain, is verifiable at any later time.
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(f) The empty polythene cement bags were taken for delivery at work sites, being the stretch, from 3.00 KM to 3.625 KM and the measurements were recorded as the Tender Item No-1. Thereafter, the bags were filled up with local sand within 90 Meters, and the measurements of such filling have been recorded as the Tender Item No.-2. But while dumping the filled up bags, there has been records all through the side notes on the Measurement Books, that the bags were filled up at 2.00 KM point of the T.J.M.C., with the soil collected from areas situated at 3 K.M. to 4 K.M. away, from 2.00 KM., point of the T.J.M.C., and from there, those bags were manually carried to lay on stretch, from 3.24 KM to 3.45 KM of the T.J.M.C. Thus the basis taken by them for calculation of 19 numbers of leads, was that the stretch from 2.00 KM to 3.24 KM point of the Teesta Jaldhaka Main Canal (abbreviated as T.J.M.C.), was not accessible by any truck or D-8 Dozer.
(g) The accused were allowed 19 numbers of lead, on the pretext that, the stretch from 2.00 point to 3.24 KM. Point of the Teesta Jaldhaka Main Canal, was not accessible by any truck or tipper or D-8 Dozer, they are simultaneously recording measurment of the Tender Item 6, which involves plying of heavy vehicles like tippers, truck, etc. to throw earth in the stretch, from 3.24 KM point to 3.45 KM of the T.J.M.C.
(h) It is on record on 19/03/1996, in the pages 34-35 of the Measurement Book No. - 374, entered by Shri Goutam Maity, one Sub-Asstt. Engineer, that "The place of filing poly bags at 2.0 KM of T.J.M.C., so the total lead distance to (3.312-2) KM 1.3125 km 1312 Mt Hence lead required 1312 - 8 210/60 18.375 No's say 19 leads". This is admittedly in support of the fact that, the access and/or entry to the site was from 2.00 KM to 3.625 KM of the T.J.M.C.
(i) On the same day of 19/03/1996, and also on 20/03/1996, there is record in the pages from 39-49 of the same Measurement Book, being 374, that the Tipper Truck and similar other heavy vehicle were plying in the work of transporting the earth through execution of the Tender Item 6 and it is also recorded there in all the pages from 39 to 49 that "These stacks are utilised on G.L. from 3.24 KM. Of T.J.M.C." and Shri Chakraborty had put initials dated 19/03/1996, under the heading "Checked" on all the pages.
(j) The measurement of the cement polythene bags, as has been show in different Measurement Books, by different Sub-Asstt. Engineer, has made in contradictory ways. On one hand, there is record that, the said empty cement polythene bags were taken supply at the site being from stretch 3.00 KM to 3.625 KM of the T.J.M.C. and the said empty cement polythene bags were filled up by local sand available within 90 Meters and on the other hand, there is simultaneous record in the pages of the Measurement Books, that the said empty cement polythene bags were filled up by carried earth at 2.00 KM point of the T.J.M.C. and thereafter, those were carried by hand load, to 3.24 KM to 3.45 KM of T.J.M.C. on the pretext that, the ground condition of the stretch from 2.00 KM to 3.24 KM & up to 3.45 KM was very soft which was non accessible to heavy vehicles like tippers or so. When there is record that, the polythene cement bags had to be carried on head load on the pretext of soft condition of the soil, there is 9 also record that heavy vehicles could ply at the same time on the same stretch even to the extent of 584 trips on 19/03/1996 (?) itself. Though there was directive of the Chief Engineer of the project, upon the Executive Engineer, Teesta Left Bank Divn. Not to use polythene cement bags such entry of huge number of the polythene cement bags in the measurement books, were done in clandestine manner and ultimately, the records have been contradictory and therefore non-convincing.
(k) There is no measurement in respect of the tender Item No. - 4 being that of granting a gratis of 19 number of lead for 378200 bags amounting to Rs. 11,34,600/- (Rupees Eleven Lakhs Thirty fore Thousand & Six Hundred only), to the agency. There is only a statement for allowing the said lead of 19 numbers. The basic requirement of making any payment of any Tender Item, it is to take measurement, as per tender condition, and record the same in the Measurement Books, and in absence of any measurement of any item, there cannot be any payment as per contract. Even the said statements of the Tender item No-4 have been subsequently inserted, in the meagre space, between Tender Item 3 and other items, entered below and Shri Chakraborty had put his signature, on the pages showing the Tender Item No-4, on dates period to his joining on 15/03/1996. This is undoubtedly inserted in the measurement books, as an after thought. The pages 81, 103, 109 of Measurement Book No- 247, the pages 9,16,22,27,76 of the measurement Book No- 372, the page 39 of the Measurement Book No- 374, the pages 12, 21, 35, 41 & 59 of the Measurement Book No- 375 contain the said unusual incident. Further, the said 10 lead has been given on the pretext that, the soil was very soft in the stretch from 2.00 KM to 3.3 KM of the T.J.M.C., though, at the same time, when, heavy vehicles like the tipper trucks were shown, in the measurement of the tender item No- 6 to have been plying on the said stretch.
(l) Even after entering the records of the earth work by plying of the tippers and unloading in the stretch from 3.24 KM to 3.45 KM of T.J.M.C. on 19/03/1996, there had been further taking supply of the polythene cement bags, and starting from 2.00 KM point carrying them by head load and dumping the same in the stretch from 3.24 KM to 3.45 KM of T.J.M.C. on dates 20/03/1996, 21/03/1996, 23/03/1996, 26/03/1996, 27/03/1996 and also on dates thereafter.
(m) The measurement of the poly bag items being Tender Item No.- 1,2,3 have been recorded in a very illegal manner and the notes in the pages of the measurement books are not only contradictory but, show clear departure of the provisions of the contract and as there has been no measurement of the Tender item No- 4, granting payment on that account is not only unprecedented, but show how desperate were the persons, in misappropriating the public money.
(n) The measurement of the Tender item No- 6, being 2193.656 Cubic meters, was taken on 19/03/1996 & 1826.397 cubic meters on 20/03/1996 in pages 39-49 on the measurement Book No- 374. The capacities of tippers are usually 4 cubic meters and such, on 19/03/1996, the quantum of 1826.397 cubic meters required 457 trips. There cannot be more than ten working hours in the month of March and this needed 58 trips per hour on 11 average. The total time required for each trip can never be less than 45 minutes for each tipper and on that count, there is no possibility of producing 13 trips for each tipper during 600 minutes a day. It indicates that, it required not less than employment of 45 tippers for the said 19/03/1996 & 35 tippers on 20/03/1996 to execute the said quantum of 4020.053 cubic meters, as has been shown in the measurement book 374 in the pages 39-49. When Shri Gurudas Chakraborty, vide his Memo No- 4C- 27/503/3(3) Dated - 28/03/1996, in paragraph 3, page 2 of the said letter, has very clearly stated that "The work order for Associated Contractors had been given on 05/02/1996. By now about one month and some days time has elapsed and the service road along the canal is yet to be completed. It is true that initial set time for commencement of works mobilization of resources take some time but never to the tune of such long span during which the agency engaged has to sit idle for no fault on their part ...." It is therefore clear that, had there been any incident of engaging as many as 45 tippers or so, by the agency, Shri Chakraborty, could not have written a letter stating particularly the very words being "the agency engaged has to sit idle for no fault on their part".
(o) From the page No- 2 to 15 of the level Book No - that pre-work levels were taken on 15/09/1996 and while the pre-work levels were being taken Shri Gauranga Bag, Shri P. B. Majumder, Shri G. Maity, Shri A. K. Giri were present on behalf of State Govt. and Shri Niranjan Nath was present on behalf of M/S Associated Contractors as partner. From the level Book it is found from the pages 1 to 15 that as many as 224 numbers of Spot Levels were taken and it is 12 also found from the said pages that the S.A.Es signed with the remark "Level taken in my presence" and Shri Niranjan Nath of M/S Associated Contractors put his signature on each page with remark "signed with objection".
(p) It is clear that before submitting the Tender paper the agency looked to Para - 12 of the Notice Inviting Tender wherein it was provided that 'before submitting tenders the tenderness are to satisfy themselves by actual visit of the sites as regards to the condition of roads and approaches, other conditions of the locality and any difficulty that may arise during the execution of the work. Any tenders submitting tenders shall be deemed to have done so. No subsequent claim on these account will be entertained". The agency was fully aware of the site condition and agreed to the terms of the contract and the provision of Circle Schedule that before commencement of the carried work, pre-work levels would have to be taken. As such the programme of taken pre-work level on 15/03/1996 was made after taking consent of the agency. Had there been any dispute regarding the Spot Levels taken on 15/06/1996 the agency had liberty to object while the said Spot Levels were being taken. After the Spot Levels were taken and recorded in the Level Book there is hardly any ground and reason to put signature with comment "signed with objection". It is therefore clear that while the levels were being taken the agency did not have any objection and the said objection, as found to have been recorded have been done on subsequent occasion and it has been done on after thought. That the officers and the S.A.E.s allowed Shri Niranjan Nath to put his signature with the comment "signed with objection" on the level Book on any subsequent occasion, conclusively proves the 13 connivance in between the officers, the SAEs and Shri Niranjan Nath and the aforesaid persons even took recourse to the forgery of Govt. documents with the motive of creating confusion of the ground condition.
(q) Shri Gurudas Chakraborty admitted in his Memo No- 503 dated - 28/03/1996 that the agency remained idle upto 28/03/1996, but when he received an advance bill to the tune of Rs. 73,94,000/- (Rupees seventy three lakhs ninety four thousand only) from Shri Arun Kumar Giri who in his tenure received the bill after being prepared by Shri Goutam Maity. Shri P. B. Majumder, Shri Gauranga Bag, Shri Chakraborty did not raised any objection to the officers under him why advance bill was prepared on no measurement of work. Instead of objecting, he on the same day made payment to Shri Niranjan Nath, who on behalf of the said agency received.
(r) The said bill was marked as 1st running Account Advance Bill dated 29/03/1996 and on the body of the bill as well as on page of Measurement Book 380 on which the bill extract was prepared, there was certificate furnished by Shri A.K. Giri and others that measurements will be taken as soon as possible. On 14/05/1996, the 2nd Running Account Measure Bill was prepared on the measurements shown to have been taken on dates much earlier to 29/03/1996. This shows, that the measurements shown to have been taken earlier to 15/03/1996 are totally false in as much as it has been admitted in clear terms by the officials that pre-work level was taken before commencement of the work. If the measurements as shown in 2nd Running Account Bill are scrutinized, it will be evident that the value of measurements shown to have been 14 upto 29/03/1996 is only of 23 lakhs (approx). This shows, the officials even could not manufacture the measurements having a value more than 23 lakhs.
6. It would be worthwhile to note, earlier when some of the charge- sheeted accused persons, standing on the similar footing as that of the present petitioners, moved this Court for quashing of the charge-sheet, this Hon'ble Court after detailed consideration of the charge-sheeted materials, viz., evidentiary materials collected by the police during investigation and proposed to be relied by the prosecution against the accused during trial came to a definite conclusion that offences for which charge-sheet has been submitted have been clearly made out. So far as the contention of the petitioners that in the arbitration proceeding arising out of the self-same dispute an award was passed in their favour and as such the criminal proceedings based on the self-same allegations is liable to be quashed, was dealt with in detailed by this Hon'ble High Court. In this regard the observation of this Hon'ble Court is quoted below;
"These materials have transpired during investigation of the case and unquestionably were not available to the defacto- complainant when he participated in the Arbitration Proceeding. These materials were not present before the learned Arbitrator to traverse. In a word the learned Arbitrator could not be seized with the determination the criminal charges levelled against the officials of the Government of West Bengal and the said charges when prima facie substantiated through submission of charge sheet should not be left unattended to on the ground that Arbitration Proceedings ended with an award in favour of the claimant. How the officials of the Government proceeded in a mala fide manner, where illegalities were committed, where forgeries were committed, where manipulations have been made in the Measurement Books - all have transpired allegedly during investigation and in this view of the matter when charge sheet 15 has been submitted it cannot be said that the trial must not be allowed to be continued with in view of an award having been made by the learned Arbitrator. The State of West Bengal preferred an appeal before the Supreme Court and it has not been dismissed. The appeal has been admitted for hearing on certain conditions as have been mentioned above."
7. The aforesaid findings when challenged before the Hon'ble Supreme Court, the Supreme Court dismissed the Special Leave Petition without interfering with such findings of this Hon'ble High Court. It is true that Hon'ble Apex Court granted liberty to the petitioners, who moved the Special Leave Petition to raise all contentions at the time of framing of charge. The fact remains that the finding of this High Court that on the evidentiary materials collected by the police during investigation the charge-sheeted offences have been clearly made out as well as the findings that because of an award passed in favour of the accused persons, the criminal proceeding is not liable to be quashed have been sustained by the Apex Court. Accordingly, when the Trial Court on the self-same materials framed charge against the petitioners it cannot be said that order of framing charge suffers from any legal wrong. This Court is also of no doubt that on the charge-sheet materials the Trial Court was fully justified in framing charge.
8. The contention of the petitioners that the agreement contained an arbitration clause for settlement of all disputes arising out of the same and in terms of such arbitration clause the dispute has been referred to the arbitrator and an award was passed in favour of the accused persons, therefore, this criminal case is liable to be quashed stands contrary to the settled law. 16
(i) In the case of Trisuns Chemical Vs. Rajesh Bajaj, reported in (1999) 8 SCC 686, the Apex Court held merely because an act has a civil profile is not sufficient to denude of its criminal outfit. The provisions incorporated in the agreement of referring the dispute to arbitration is not an effective substitutes for a criminal prosecution when the disputed act is an offence.
(ii) In the case of Prativa Vs. Rameshwari Devi & Ors., reported in (2008) 1 SCC (Cri) 399, the Apex Court observed that it is well settled that criminal and civil proceedings are separate and independent to each other and pendency of a civil proceeding cannot bring to an end of criminal proceeding even if they arise out of the same set of facts.
(iii) In the case of Indian Oil Corporation Vs. NEPC India Ltd. & Ors., reported in (2006) 3 SCC (Cri) 188, it was the observation of the Hon'ble Supreme Court that a commercial or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law may also involve a criminal offence. The mere facts the complaint relates to commercial transaction or breach of contract for which a civil remedy is available or even has been availed of, is not by itself a ground for quashing of criminal prosecution. The test is whether the allegations in the complaint discloses an offence or not.
(iv) In the case of Lal Muni Devi Vs. State of Bihar, reported in 2001 SCC (Cri) 275, it was held by the Apex Court there is hardly any dispute that when a complaint does not disclose offence it can be quashed but merely because on the self-same facts a civil claim is maintainable that does not mean the criminal complaint cannot be maintained.
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(v) In the case of K.G. Premshanker Vs. Inspector of Police & Anr. (supra), the question arose when on the same set of facts there are both civil as well as criminal proceedings whether decision rendered by the Civil Court will prevail and the criminal prosecution be dropped the Apex Court held as follows;
"What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provisions that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein." (Para 30) Finally, the Apex Court held that civil proceedings as well as criminal proceedings are required to be decided on the evidence which may be brought on record by the parties.
(vi) Last but not the least, in the case of Gurcharan Singh & Anr. Vs. Allied Motors Ltd. & Anr., reported in 2005 SCC (Cri) 1653, the Apex Court in paragraph 5 amongst other held as follows;
"...It is also not in issue that objections to the award are pending. It is elementary that civil proceedings or arbitration proceedings for recovery and the criminal proceedings under Section 138 of the Negotiable Instruments Act are based on independent cause of action. The making of the award may be a defence to such a complaint but to what extent the defence would be valid, shall depend upon the facts and circumstances of each case. Mere making of the award cannot be a ground to stall or stay the proceedings initiated under Section 138 of the Negotiable Instruments Act..."18
Thus, from the aforesaid decisions the following legal propositions clearly emanates;
(a) Merely because an act has a civil profile it is not sufficient to denude of its criminal outfit.
(b) The provisions incorporated in the agreement of referring the dispute to the arbitration is not an effective substitute of a criminal prosecution when the dispute act is an offence.
(c) Criminal and civil proceedings are separate and independent to each other and pendency of a civil suit cannot bring to an end of criminal proceeding even if they arises out of the same set of facts.
(d) A commercial or contractual dispute, apart from furnishing a cause of action for seeking remedy of civil law may also involve a criminal offence.
(e) The mere facts the complaint relates to commercial transaction or breach of contract for which civil remedy is available or even has been availed of, is not by itself a ground for quashing of criminal prosecution.
The test is whether the allegation in the complaint discloses an offence or not.
(f) There is hardly any dispute that when a complaint does not disclose offence it can be quashed but merely because on the self-same facts a civil claim is maintainable that does not mean the criminal complaint cannot be maintained.
(h) A civil proceeding or arbitration proceeding for recovery and criminal proceedings are based on independent cause of action. The making of 19 the award may be a defence to such a complaint but to what extend depends would be valid, shall depend upon the facts and circumstances of each case.
(i) Mere making of the award cannot be a ground to stall or stay the proceedings initiated under Section 138 of the Negotiable Instruments Act.
9. The submission of Mr. Moitra that the FIR was lodged long after and that too after the dispute has been referred for arbitration and the charge-sheet was submitted in undue haste after the award in arbitration proceeding was passed in favour of the accused are basically the defence of the accused persons that will have to be put-forth and be considered during the trial but are no ground for quashing. When the accused sought for quashing of charge the only relevant consideration would be whether on the materials proposed to be relied upon by the prosecution during the trial against the accused framing of charge is justified or not. Since this Court has already upon perusal of the charge-sheet materials found that the offence has been made out and the award passed in favour of the complainant in an arbitration proceeding is no ground for quashing of a criminal case, apart from the fact that this Hon'ble Court has earlier considered the self-same materials and come to the conclusion that offence has been made out and such observation not being interfered by the Hon'ble Supreme Court, the question of quashing of the impugned charge does not at all arise.
This criminal revision has no merit and accordingly stands dismissed.
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Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
( Ashim Kumar Roy, J. )