Allahabad High Court
M/S N.C.F.D. And 2 Others vs State Of U.P. And 3 Others on 17 August, 2023
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:165004-DB Reserved on 26.5.2023 Delivered on 17.8.2023 In Chamber Case :- CRIMINAL MISC. WRIT PETITION No. - 3973 of 2023 Petitioner :- M/S N.C.F.D. And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Chandra Prakash Srivastava Counsel for Respondent :- G.A.,Manjari Singh Hon'ble Anjani Kumar Mishra,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Heard learned counsel for the petitioners, Ms. Manjari Singh, who has been permitted to intervene on behalf of Union of India through Secretary, Ministry of Defence and learned AGA for the State.
The writ petition seeks quashing of the F.I.R. dated 28.10.2022 arising out of Case Crime No. 0212 of 2022, under Sections 419, 420, 467, 468, 471 IPC, Police Station Rail Bazar, District Eastern (Commissionarate Kanpur Nagar).
The impugned FIR has been lodged by Lieutenant Colonel Satrudhan Singh, Central Ordnance Depot, Kanpur Nagar on the basis of an application moved under Section 156(3) Cr.P.C. with the allegations that in the departmental enquiry it has been found that the Firm M/s N.C.F.D. (petitioner no. 1) in collusion with its coordinators and controllers, namely, Mayank Srivastava and Mudit Srivastava (petitioner nos. 1 and 2 ) have prepared forged and fabricated documents procuring forged signature of the officials as well as the forged inspection notes obtained payment of Rs. 5,28,43,095 crores from the Office of Principal Controller Defence Accounts, New Delhi without supplying the complete material (50,000 raincoats).
The contention of learned counsel for the petitioners is that there exists a contract existing between Army Headquarters, New Delhi and M/s N.C.F.D, Kanpur Nagar for the supply of 50,000 raincoat (rain cape poncho) to the Central Ordnance Depot, Kanpur Nagar. It has further been contended that the said contract is covered by Section 17 of the Indian Contract Act. There is also an Arbitration Clause between the parties and, therefore, the First Information Report should not have been filed, as the dispute is a civil dispute, which has been given colour of criminality with uterior motive. The petitioners being the contractor had not submitted any bill for payment.
Learned counsel for the petitioners relying upon the judgement of the Apex Court in Criminal Appeal No. 1380 of 2023 (Kunti and another vs. State of Uttar Pradesh and another) decided on 03.05.2023 where it has been held that "where there is a breach of contract, the criminal prosecution does not give rise for cheating unless fraudulent or dishonest intention is shown, right at the beginning of the transaction. It has further been emphasised that merely allegation of failure to keep up promise will not be enough to initiate criminal proceedings".
Per contra learned counsel for the opposite party no. 2 and learned AGA for the State have vehemently opposed the aforesaid prayer and asserted that there is no express bar to the simultaneous continuance of a criminal as well as civil proceedings as rendered by the Hon'ble Apex Court in Trisuns Chemical Industry vs. Rajesh Agarwal & others, (1999) 8 SCC 686 wherein it has been held that criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit.
Upon hearing learned counsel for the parties and upon perusal of the record, we find that the submissions made on behalf of petitioners are his defence, which cannot be looked into while dealing with the writ petition seeking quashing of First Information Report.
The issue that for making out an offence of cheating in the facts and circumstances of the case, it has to be shown that the intention existed right from the beginning of the transaction, cannot be determined at this stage. It will require investigation and evidence to prove or disprove the allegation of cheating and, therefore, at the stage of quashing of a first information report, the issue cannot permit throwing out the prosecution case at the very inception.
Moreover, the allegations made in the First Information Report clearly disclose commission of cognizable offences and allegations are serious in nature. Therefore, the prayers of the petitioners to quash the First Information Report is completely misconceived and is rejected.
The writ petition is, therefore, dismissed, without prejudice to the right of the petitioners to apply for bail/anticipatory bail.
Order Date :- 17.8.2023 Puspendra