Punjab-Haryana High Court
Mohinder Singh vs The State Of Punjab & Anr on 16 February, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM Nos. M-44541 of 2007 & 58222 of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Criminal Misc. No.M-44541 of 2007
Mohinder Singh ....Petitioner
Versus
The State of Punjab & Anr. ...Respondents
2. Criminal Misc. No.M-58222 of 2004
Kewal Krishan Jindal ....Petitioner
Versus
State of Punjab & Anr. ...Respondents
Date of Decision:- 16.2.2012
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- S/Shri R.S.Rangpuri & A.K.Kalsy, Advocates for the petitioners.
Mr.C.S.Brar, D.A.G. Punjab for respondent No.1.
Ms.Deepali Puri, Advocate for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
As identical questions of law and facts are involved, therefore, I propose to dispose of above indicated two petitions, for quashing the impugned orders, by virtue of this common judgment, in order to avoid the repetition. However, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petitions, have been extracted from (1)CRM No.M-44541 of 2007 (for brevity "1st case") titled as "Mohinder Singh Vs. The State of Punjab & Anr." in this context.
2. The matrix of the facts and material, culminating in the commencement, relevant for disposal of the present petitions and emanating from the record, is that the Punjab Civil Supplies Corporation Limited (for short "the CRM Nos. M-44541 of 2007 & 58222 of 2004 -2- PUNSUP") desired to get the paddy milled into rice from different rice shellers, as per clause 10 of the Amended Punjab Rice Procurement (Levy) Order, 1983. An agreement (Annexure P1) was executed between the PUNSUP and M/s S.M.Rice and General Mills of the petitioner (in 1st case). The similar agreement was also executed between the PUNSUP and petitioner Kewal Krishan Jindal (in CRM No.M-58222 of 2004) (in short "2nd case"). In pursuance of the agreement, 61005 bags of A-class quality paddy, weighing 30502.50 quintals was entrusted to the firm of petitioner (in 1st case). Similarly, the paddy, worth ` 1,82,00,000/- was entrusted to the firm of the petitioner (in 2nd case), for de-husking into rice. The firms acknowledged the receipt of stock and were required to return the rice of the same quality to PUNSUP within the stipulated period. Instead of returning the A- class quality rice of the required quantity, the indicated firms returned a very less quantity (weight) of rice, that too, of very inferior quality. In this manner, they were stated to have cheated and misappropriated the entrusted paddy by PUNSUP, worth many crores of rupees, for their own gains. The District Manager of PUNSUP reported the misappropriation to the Deputy Commissioner, who further brought to the notice of Senior Superintendent of Police. The matter was investigated and the misappropriation was detected in this relevant connection.
3. Levelling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that the petitioners-accused have misappropriated the entrusted paddy. They did not return the A-class quality rice and returned a very less quantity (weight) of rice of inferior quality. Thus, they have committed the criminal breach of trust and cheated the PUNSUP. In the background of these allegations, criminal cases were registered against the petitioner-firms and other similar firms, on accusation of having committed the offences punishable under Sections 406, 408, 409, 420, 34, 120-B IPC and section 13(1)(c) & (d) of the Prevention of Corruption Act, 1988, by virtue of FIRs in question by the police of Police Station Punjab Vigilance Bureau in the manner CRM Nos. M-44541 of 2007 & 58222 of 2004 -3- described hereinabove. The cases were duly investigated and the oral as well as documentary evidence was collected. After the completion of investigation, the concerned police submitted the challans/final police reports u/s 173 Cr.PC against the accused for trial.
4. Having completed all the codal formalities, the Chief Judicial Magistrate negatived the contentions of petitioners-accused, by way of detailed order dated 19.9.2006 (Annexure P4) and charge sheeted them (in 1st case) for the commission of offences punishable under sections 409 and 406 IPC, vide separate charge sheet of even date. The revision petition (Annexure P5) filed by petitioner- accused against the order (Annexure P4) was dismissed as well, by the revisional Court, by means of impugned order dated 28.3.2007 (Annexure P6). However, it will not be out of place to mention here that although the trial Magistrate did not frame the charges in the 2nd case at the first instance, but in the wake of revision petition by the PUNSUP, the revisional Court ordered the framing of charges against the petitioner-accused (in 2nd case), by virtue of impugned order dated 15.6.2004 (Annexure P4) as well.
5. The petitioners-accused still did not feel satisfied and preferred the instant petitions, challenging the impugned orders (Annexure P6) (in 1st case) and Annexure P4 (in 2nd case) framing the charges against them, invoking the provisions of Section 482 Cr.PC, leaving this Court in lurch to think, as to what extent, the finding should be recorded with regard to the controversy raised in the present petitions, as the same would naturally have the direct bearing on the real issues between the parties, to be determined by the trial Court, during the course of trial. Be that as it may, but in the interest of justice, the principle of "safety saves"
has to be kept in focus in this relevant behalf, while deciding the instant petitions.
6. Assailing the impugned orders, at the very outset, the learned counsel for petitioners-accused have contended with some amount of vehemence that the PUNSUP is competent to recover the amount of misappropriated paddy, as per the CRM Nos. M-44541 of 2007 & 58222 of 2004 -4- terms and conditions and since there is an arbitration clause to settle the dispute in the agreement, so, the initiation of criminal proceedings against the petitioners- accused is a misuse of process of law. The argument is that even all the essential ingredients of the offence punishable under section 406 IPC are not complete. The learned counsel has also further added that the criminal prosecution against the petitioner-accused (in 2nd case) is otherwise barred under section 468 Cr.PC. Thus, they prayed that the impugned orders framing the charges against the petitioners- accused be quashed.
7. Hailing the impugned orders, on the contrary, the learned counsel for the respondents urged that it stands proved on record that the A-class quality paddy, worth crores of rupees, was entrusted to the firms of the petitioners- accused, for shelling into rice, but they have misappropriated and did not return the rice of same quality till today. The submission is that the revisional Court has rightly repelled these very contentions of the petitioners, while ordering the framing of charges against them and no ground, to invoke the limited jurisdiction of this Court under section 482 Cr.PC, is made out. Hence, they prayed for dismissal of the petitions. That is how, I am seized of the matter.
8. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present petitions.
9. Above being the position on record, now the short and significant question, though important, that arises for determination in these petitions is, as to whether the impugned orders, framing the charges against the petitioners, are liable to be quashed, in view of arbitration clause in the agreement or not?
10. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative in this regard.
11. Ex facie, the arguments of learned counsel that there is an arbitration clause in the agreement and since the PUNSUP has alternative remedy of CRM Nos. M-44541 of 2007 & 58222 of 2004 -5- arbitration, so, the Courts below committed a legal mistake in framing the charges against the petitioners-accused, are neither tenable nor the observations of this Court in cases Punjab State Civil Supplies Corporation (PUNSUP) v. Deepak Kumar and another (2007-2) PLR 663 and judgment dated 24.3.2011 rendered in Food Corporation of India v. Jograj and another CRR No.2639 of 2010, are at all applicable to the facts of the present case at this stage.
12. As is clear that in Deepak Kumar's case (supra), the accused was convicted and sentenced under section 406 IPC by the trial Court. However, the acquittal was set aside by the appellate Court. The application for leave to appeal filed by the PUNSUP was dismissed, only on the grounds that during the course of trial, the prosecution could not prove the identity of the person, who was stated to have received the paddy on behalf of M/s Guru Rice Mills. No witness was examined to prove the transfer of the bags. It was found as a fact by the appellate Court that the accused had already supplied the rice equal to whatever paddy was supplied to the accused. He had returned the rice of entire paddy after shelling as per the terms of the agreement.
13. Sequelly, in Jograj's case (supra), the FCI has neither contended that the paddy was removed or taken out from the mill premises nor the rice was shelled outside the premises of the mill nor there was any allegation that the miller had dealt with the paddy in a different manner than provided in the agreement. Therefore, on the peculiar facts and in the special circumstances of those cases, it was observed that no offence under section 406 IPC was made out.
14. Possibly, no one can dispute with regard to the aforesaid observations, but, to my mind, the same would not come to the rescue of the petitioners-accused in the instant controversy.
15. As is evident from the record, that in pursuance of the agreement, the PUNSUP has entrusted the A-class quality paddy for milling into rice, which was duly acknowledged by the petitioners-accused. Instead of returning the A-class CRM Nos. M-44541 of 2007 & 58222 of 2004 -6- quality rice of the required quantity, the firms of petitioners returned only a very less quantity (weight) of rice, that too, of very inferior quality, in order to cheat. In this manner, they were stated to have misappropriated the A-class quality paddy/rice.
16. As indicated hereinabove, the petitioners-accused have been charge sheeted for committing the criminal breach of trust punishable under section 406 IPC. Section 405 postulates that "whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
17. Therefore, all the essential ingredients of the indicated offence are complete. Moreover, Hon'ble Apex Court in case Rajesh Bajaj vs. State NCT of Delhi and others (1999) 3 SCC 259 has held that "it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage." It was also observed that "a commercial transaction or money transaction is hardly a reason for holding that the offence of cheating would elude from such a transaction". Above-all, all the offences so committed by the petitioners, would be the moot points to be decided during the course of trial after receipt of evidence by the trial Court.
18. What cannot possibly be disputed here is that in the instant case, the prosecution claimed that the A-class quality paddy in question was entrusted to the CRM Nos. M-44541 of 2007 & 58222 of 2004 -7- firms of the petitioners-accused for de-husking and they were required to return the A-class quality rice after milling within the stipulated period. Instead of supplying the A-class quality rice, they supplied the inferior quality of rice in a much lesser quantity/weight with a mala fide intention to cheat the PUNSUP and misappropriated the A-class quality rice in the manner depicted hereinbefore. Therefore, the action of petitioners squarely falls within the domain of four corners of criminal breach of trust as defined under section 405 and punishable under section 406 IPC. The mere fact that there is an arbitration clause in the agreement, ipso facto, is not a ground for quashing the charge sheet against the petitioners- accused. This matter is no more res integra and is well settled.
19. An identical question came to be decided by Hon'ble Supreme Court in case Trisuns Chemical Industry v. Rajesh Agarwal and Ors. 1999(8) SCC 686. Having interpreted the relevant provisions, it was held that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude the Court of its criminal outfit. It was further ruled in para 9 as under:-
"9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal".
20. Not only that, the same view was reiterated by Hon'ble Apex Court in CRM Nos. M-44541 of 2007 & 58222 of 2004 -8- cases Gurcharan Singh & Anr. v. M/s Allied Motors Ltd. & Anr. 2005(10) SCC 626; State of Punjab v. Pritam Chand and Ors. 2009(16) SCC 769 and by this Court in case Pawan Kumar v. State of Haryana 2006(2) RCR (Criminal) 162.
21. Moreover, a similar point was decided by the Hon'ble Supreme Court in cases M.S.Sheriff and another v. State of Madras and others 1954 AIR (SC) 397; Kamaladevi Agarwal v. State of West Bengal 2001 AIR (SC) 3846; K.G.Premshanker v. Inspector of Police and Anr. 2002 AIR (SC) 3372; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005 AIR (SC) 2119 and Smt.Rumi Dhar v. State of West Bengal and another 2009(2) RCR (Criminal)
704. Having interpreted the provisions of sections 300, 482 Cr.PC and sections 40 to 43 of the Evidence Act, it was ruled that "standard of proof required in two proceedings i.e. civil & criminal cases, is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other distinct matter, as both the cases have to be decided on the basis of the evidence adduced therein. Each case has to be decided on the basis of its own facts." It was also held that "judgment of civil Court is not always a good ground to quash the criminal proceedings." In this case, the arbitrator cannot decide the question of crime committed by the petitioners. As the jurisdiction of criminal Courts and arbitral tribunals are entirely different and distinct, therefore, the mere fact that there is an arbitration clause in the agreement, ipso facto, is not a cogent ground for quashing the charges framed against the petitioners-accused, as (contrary) urged on their behalf.
22. Likewise, the next feeble argument of learned counsel for petitioners that cognizance in 2nd case is otherwise barred under section 468 Cr.PC, lacks merit and the observations of Hon'ble Supreme Court in cases State of Bihar v. CRM Nos. M-44541 of 2007 & 58222 of 2004 -9- Deokaran Nenshi and another AIR 1973 Supreme Court 908; State of Punjab v. Sarwan Singh AIR 1981 Supreme Court 1054 and of this Court in cases Gurcharan Singh v. Lakhwinder Kaur 1988 (2) Recent CR 621 & Nand Lal v. State of Haryana 1987(2) Recent CR 467 are not at all relevant to decide the controversy involved in the present case, wherein, it was held that "the object of Criminal PC in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which, material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The State or a private complainant must abide by the spirit of law and no Court can take cognizance after the expiry of period of limitation as contemplated under section 468 Cr.PC." There can hardly be any dispute with regard to the aforesaid observations, but, to me, the same will not advance the cause of petitioners in any manner
23. As depicted hereinabove, according to the prosecution that PUNSUP has entrusted the A-class quality paddy to the firms of petitioners-accused for milling, which was acknowledged by them. Instead of returning the same quality rice of the required quantity, the indicated firms returned a very less quantity (weight) of rice, that too, of very inferior quality. Meaning thereby, they have not returned the entire A-class quality rice till today, cheated and misappropriated the PUNSUP. That means, since the petitioners-accused did not return the complete stock of A-class quality rice till today, so, the commencement of the crime is still continuing. In that eventuality, a fresh period of limitation shall begin to start at every moment of the time, during which, the offence continues, as envisaged under section 472 Cr.PC and question of bar of limitation would not apply to the present case. Moreover, the trial Court has vast power to take cognizance of an offence after the expiry of period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or it is CRM Nos. M-44541 of 2007 & 58222 of 2004 -10- necessary so to do in the interest of justice. Therefore, question of limitation under section 468 Cr.PC does not arise at all at this stage in this case, as (contrary) urged on behalf of the petitioner (in 2nd case).
24. This is not the end of the matter. The questions, scope and jurisdiction of this Court for quashing the charge sheets at the initial stage of trial under section 482 Cr.PC are not res integra. It is well settled that if, on the bare reading of the case, the offences are made, then, no order can be made for quashment of criminal prosecution. Such criminal prosecution at the initial stage can only be quashed in the rarest of the rare matter, in case, it is proved that the same was lodged maliciously or vexatiously in order to wreak vengeance and not otherwise, in view of the law laid down by the Hon'ble Supreme Court in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in cases Som Mittal v. Government of Karnataka 2008(2) R.C.R.(Criminal) 92 and Dharmatma Singh v. Harminder Singh and others (2011)6 SCC 102.
25. The same very point was considered by the Hon'ble Apex Court in a recent judgment in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal) 183. Having interpreted the scope of section 482 Cr.PC, it was ruled (para 16) as under:-
"16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the CRM Nos. M-44541 of 2007 & 58222 of 2004 -11- inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
26. In this manner, the Bench mark and requisite ingredients for quashing the criminal prosecution set out in the aforesaid judgments are totally lacking and no ground for quashing the impugned orders is made out in the present cases.
27. There is another aspect of the matter, which can be viewed from a different angle. Having completed all the codal formalities, the revisional Court examined the matter in the right perspective and negatived all the submissions, now sought to be urged on behalf of petitioners and correctly ordered the framing of charges against them, vide impugned orders (Annexure P6) (in 1st case) and Annexure P4 (in 2nd case).
28. All other contentions as to whether the petitioners-accused have returned the same quantity of A-class quality rice, as urged on their behalf or they did not return the entire quantity of the same quality and only returned the less quantity/weight of very inferior quality, as urged on behalf of complainant and all other arguments, relatable to the appreciation of the evidence, now urged on behalf of petitioners-accused, would be the moot points to be decided after receipt of evidence by the trial Court. Such points requiring appreciation of evidence cannot possibly be decided by this Court. If all such points, which require determination by the trial Court, are to be decided by this Court in the garb of petition under section 482 Cr.PC, then the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as contemplated under the Code of Criminal Procedure, which is not legally permissible. Above all, counsel for petitioners did not point out any material, muchless cogent, warranting any interference in the impugned orders.
29. Meaning thereby, the Courts below have recorded the cogent grounds in this respect. Such orders, containing valid reasons, cannot possibly be interfered CRM Nos. M-44541 of 2007 & 58222 of 2004 -12- in exercise of the limited jurisdiction of this Court under section 482 Cr.PC, unless and until, the same are illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners, so, the impugned orders (Annexure P6) (in 1st case) & Annexure P4 (in 2nd case) deserve to be and are hereby maintained in the obtaining circumstances of the case.
30. Thus, seen from any angle, if the nature of accusation of criminal breach of trust, cheating, mis-appropriation, material evidence, legal position and totality of other facts and circumstances of the case, as discussed hereinabove, are put together, then, to my mind, the conclusion is irresistible that there is an ample evidence on record and the Courts below have rightly ordered the framing of charges against the petitioners. Therefore, the contrary arguments of their counsel "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances, as the ratio of the law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
31. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
32. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main cases, as there is no merit, therefore, the instant petitions are hereby dismissed as such.
33. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main cases, as the same has been so recorded for a limited purpose of deciding the present petitions in this relevant direction.
16.2.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No