Orissa High Court
M/S. Jindal India Thermal Power vs M/S. Quartz Infra & Engineering on 12 January, 2024
Author: D. Dash
Bench: D. Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV NO.405 OF 2023 (A)
&
CRLREV NO.406 OF 2023 (B)
In the matter of Revisions under section-397 read with section-401
of the Code of Criminal Procedure, 1973 and from an order dated
20.07.2023 passed by the learned Sub-Divisional Judicial
Magistrate, Talcher in 1CC Case No.57 of 2018.
CRLREV NO.405 OF 2023 (A)
M/s. Jindal India Thermal Power
Limited & Others :::: Petitioners.
-:: VERSUS ::-
M/s. Quartz Infra & Engineering
Private Limited. :::: Opp. Party.
For Petitioners :::: Mr. R.K. Mohanty, Sr. Advocate,
Mr. P.K. Rath, Sr. Advocate,
Ms. Amrita Mishra &
A. Khandelwal, Advocates
For Opposite Party :::: Mr. Vegesna Subha Raju,
(M.D. of O.P.-Company in person)
CRLREV NO.406 OF 2023 (B)
Shyam Sundar Jindal :::: Petitioner.
-:: VERSUS ::-
M/s. Quartz Infra & Engineering
Private Limited. :::: Opposite Party.
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
===============================================
For Petitioner :::: Mr. S.P. Misra,
Sr. Advocate,
Mr. Asit Ku. Das, Advocate.
CRLREV Nos.405 & 406 of 2023 Page 1 of 32
{{ 2 }}
For Opposite Party :::: Mr. Vegesna Subha Raju,
(M.D. of O.P.-Company in
person).
CORAM:
MR. JUSTICE D. DASH
Date of Hearing:: 05.12.2023 : Date of Judgment :: 12.01.2024
--------------------------------------------------------------------------------------- D. Dash, J. Since in both the above noted Revisions (A & B) filed under section-397 read with 401 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'the Code'), the legality and propriety of the order dated 20.07.2023 passed by the learned Sub-Divisional Judicial Magistrate (SDJM), Talcher in 1CC Case No.57 of 2018 have been called in question; those had been heard together for their disposal by this common judgment.
2. The Petitioner No.1 of the Revision as at (A) is the Company namely, M/s. Jindal India Thermal Power Plant Limited (shortly, stated as "M/s.JITPL") arraigned as accused no.1 in the complaint filed by the Opposite Party-Company namely, M/s. Quartz Infra and Engineering Limited (shortly stated as M/s.QIEL); whereas the Petitioner Nos.2 to 5 are the Liaison Officer and Ex-Director, Director, General Manager (Accounts) and the Legal Coordinator / General Manager (Commercial & Purchasing) of the Petitioner No.1-Company who too have been arraigned as accused persons in the said complaint numbered as 1CC Case No.57 of 2018.
CRLREV Nos.405 & 406 of 2023 Page 2 of 32 {{ 3 }} The Revision as at (B) has been filed by the Chairman of the Petitioner no.1-Company, M/s. JITPL, who too has been arraigned as an accused in the said criminal case which has arisen out of the complaint filed by the Opposite Party-Company, M/s.QIEL as the Complainant.
3. For the sake of convenience, in order to avoid confusion and being in clarity, the parties hereinafter have been referred to, as per their position as assigned in the complaint petition numbered as ICC Case No.57 of 2018 which has been filed by the Opposite Party-Company as the Complainant i.e. M/s. QIEL.
4. Facts necessary for the purpose are state hereunder: -
The Complainant-Company, M/s.QIEL is engaged in doing Civil Engineering work and providing construction services. It had undertaken a back-to-back sub-contract work from M/s. GSR Ventures Private Limited to execute the construction of boundary wall, area grading and levelling work in March 2010 in the newly constructed 2 x 600 MW Thermal Power Plant of the accused Company-M/s.JITPL' situated at Derang, known as Derang Power Plant.
5. The Complainant-Company, M/s.QIEL for the purpose as above, entered into Civil Engineering Work contacts with the accused-Company, M/s. JITPL sometime in between the month of April 2011 to February 2012. The contracts were for the works of CRLREV Nos.405 & 406 of 2023 Page 3 of 32 {{ 4 }} construction of peripheral roads and drains, internal roads and drains, security sheds, boundary wall as well as raw water reservoir expansion and execution of the balance work left in the Ash Dyke by M/s. GSR Ventures Pvt. Limited for the Denrang Power Plant. The Complainant-Company, M/s.QIEL for the aforesaid work as per the terms of the contract had furnished three Bank Guarantees to the tune of Rs.2.72 Crores as security/earnest money deposit.
6. Some time in the month of December 2012, the work relating to the construction of the boundary wall was completed and the work pertaining to the construction of security sheds were closed, whereas the work towards remaining four contracts i.e. construction of peripheral road, drainage, internal roads and drains, water reservoir expansion and execution of work left in the Ash Dyke by M/s.GSR Ventures Private Limited were underway.
The allegations made by the Complainant-Company, M/s.QIEL is that the termination of the contracts made by the accused-Company (M/s.JITPL) was with the active role played by the other accused persons and such termination was illegal. It is further stated that before terminating the contract, the accused- Company (M/s.JITPL) and its officials more particularly, the sole Petitioner of the Revision as at (B) had maliciously entered into an understanding with one Company i.e. M/s.Sinhotia Metal and CRLREV Nos.405 & 406 of 2023 Page 4 of 32 {{ 5 }} Minerals Private Limited (hereinafter, referred to as M/s.SMMPL) in order to usurp the work contract from the Complainant- Company, M/s.QIEL in that Derang Power Plant at a much higher rate compared to the rate awarded in favour of the Complainant-Company, M/s.QIEL. It is said that the contracts were unilaterally and illegally terminated on 31.01.2013 and the Bank Guarantees furnished by the Complainant-Company, M/s.QIEL for a sum of Rs.2.72 Crores were illegally encashed on 29.01.2013 without any prior notice or intimation to the Complainant-Company, M/s.QIEL. The Complainant-Company, M/s.QIEL was then asked to draw final bill after measurement of the work done till 31.01.2013 and vacate the premises of Derang Power Plant.
7. Despite vehement protest by the Complainant-Company, M/s.QIEL as regards the manner of termination of the contracts which being said as illegal and that M/s. SMMPL having entered into the worksite had illegally kicked out the Complainant- Company, M/s.QIEL out of an arena; under that situation, the Complainant-Company, M/s.QIEL was forced to accept the words of the Officer of the accused-Company (M/s.JITPL) and acted upon their assurance that the works done at the site would get measured and final bill would be processed within nine (09) days of the meeting held on 26.02.2013 where such was the outcome.
CRLREV Nos.405 & 406 of 2023 Page 5 of 32 {{ 6 }}
8. The joint verification of the works done by 31.01.2013 were taken and the stock taking as well as the measurement of the materials of the Complainant-Company, M/s.QIEL lying in the store of the Power Plant was conducted by the Officers of the accused-Company, M/s. JITPL; the officials of one M/s. Query and Brown as also the Officers of the Complainant-Company, M/s.QIEL. After due measurement, details of the works done were recorded in the Ground Level Books and the officials of the accused-Company, (M/s. JITPL) had attested the same. Final bill of Rs.1.53 Crores was submitted which was also duly endorsed by the concerned officer of accused-Company, (M/s. JITPL). The Complainant-Company, M/s.QIEL thereafter vacated the premises of Derang Power Plant and thereafter although there was payment of a sum of Rs.92.25 lacs, no payment of the rest amount of Rs.60.80 lacs as claimed by the Complainant- Company, M/s.QIEL was made.
9. Despite the several request by the Complainant-Company, M/s.QIEL to the accused-Company (M/s. JITPL) to release the payment as due, no heed was paid to the same, the Complainant- Company, M/s.QIEL thereafter was constrained to invoke the Arbitration Clause which was very much there in place.
10. In the said Arbitration Proceeding, the Complainant- Company, M/s.QIEL while questioning the non-payment of the balance amount as indicated in the final bill, also disputed the CRLREV Nos.405 & 406 of 2023 Page 6 of 32 {{ 7 }} termination of the contract as well as encashment of the Bank Guarantees as arbitrary and illegal. It is said that whatever were stated by the accused-Company (M/s. JITPL) therein were based on their acts of forgery or fabrication of any record for alteration of the final Bill. The final bill and the ancillary twenty-nine (29) Level Books containing measurements of the works were manipulated to show that the final bill to be around Rs.94.88 lacs. It was submitted that the accused-Company (M/s.JITPL) had submitted the documents wherein they themselves have contradicted the so-called final bill amount arrived at by them and stated that final bill was of further reduced amount of Rs.92.25 lacs which has been fully paid to the Complainant- Company, M/s.QIEL.
It is next stated that there were manipulations, forgery, and fabrication of bills as well as ancillary documents which have been referred by accused-Company (M/s. JITPL) through out in course of Arbitration.
11. The learned Arbitral Tribunal while concluding the Arbitration Proceeding without touching upon anything on the score of the manipulation, forgery and fabrication of bills as lodged by the Complainant-Company, M/s.QIEL; in its award dated 21.02.2017 rejected all those contentions/objections raised by the accused -Company (M/s.JITPL) and directed for payment of total sum of Rs.9.71 Crores by the accused-Company CRLREV Nos.405 & 406 of 2023 Page 7 of 32 {{ 8 }} (M/s.JITPL) to the Complainant-Company, M/s.QIEL. The award being passed by the learned Arbitral Tribunal on 21.02.2017, the Complainant-Company, M/s.QIEL filed the complaint on 24.04.2018 in the Court of learned S.D.J.M., Talcher.
12. In so far as the complaint petition number as ICC No.157 of 2018 is concerned, to be more specific, the allegations are that the accused persons being in active connivance arbitrarily terminated all the contracts which they had entered into with the Complainant-Company, M/s.QIEL in January 2013, the accused persons have dishonestly elaborated the final ground level measurement as also the end point of the work to reduce the quantity of the work executed and thereby cheating the Complainant-Company, M/s.QIEL by depriving it of his lawful dues towards the work done. It is also stated that such altercation of measurement by way of forgery and fabrication of record and act of misappropriation of the money of the Complainant- Company, M/s.QIEL, whereby the accused persons have caused lawful loss to the Complainant-Company, M/s.QIEL and wrongful gain to themselves as well as for the accused-M/s. SMMPL. It is said that the accused persons have thus committed offences under section-192/193196/420/463/465/468/469/471/120- B/403 of the IPC read with section 34 of the IPC and section 66(c) & (d) of the Information Technology Act 2000. CRLREV Nos.405 & 406 of 2023 Page 8 of 32 {{ 9 }}
13. The learned S.D.J.M., Talcher, embarking upon an enquiry under section-202 of the Code, by order dated 10.08.2018, took cognizance of the offence under section 192/420/465/468/471/120- B/34 of the Indian Penal Code, 1860 (hereinafter, called as 'the IPC') and issued process against the accused persons.
The accused persons at that stage approached this Court by filing application under section 482 of the Code of Criminal Procedure for quashment of the complaint. Said move did not find favour with and the matter being further carried to the Hon'ble Apex Court, said order was not interfered with and thus the prayer to quash the complaint at that stage was rejected.
14. The learned S.D.J.M. in seisin of the complaint then proceeded to record the pre-charge evidence as let in by the Complainant-Company, M/s.QIEL. On behalf of the Complainant-Company, M/s.QIEL, its Managing Director gave the evidence and he too was cross-examined at that stage by the accused persons in exercise of their right as per law.
The accused persons then having filed an application for their discharge under section-245(1) of the Code, that has been rejected by the order which has been impugned in this Revision.
15. Heard Mr. S.P. Mishra, learned Senior Counsel for the accused-Company and Mr. P.K. Rath, learned Senior Counsel for the Petitioners (accused persons). Mr. V.S. Raju, Managing CRLREV Nos.405 & 406 of 2023 Page 9 of 32 {{ 10 }} Director, Complainant-Company, M/s.QIEL who appeared in person was also heard. I have perused the case records and the notes placed.
16. At the outset at the risk of repetition, it be stated that the impugned order relates to the rejection of the prayer advanced by the accused persons for their discharge under sub-section 2 of section 245 of the Code.
17. The present case has been instituted by the Complainant- Company, M/s.QIEL and the offences of which cognizance have been taken are triable by following the procedures for trial of the warrant cases. The procedures prescribed for trial of such cases are contained in section 244 to 250 of the Code. In such warrant case arising upon a complaint instituted otherwise than on a police report when the accused appears or is brought before the Magistrate under section 244(1) of the Code, the Magistrate is called upon to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In that exercise, the Magistrate may also issue summons to the witnesses also under section 244(2) of the Code on an application by the prosecution. All such evidence would stand as evidence before charge. After such recording of the evidence is over, the Magistrate as ordained under section 245(1) is of the Code to consider as to whether any case against the accused is made out, which if unrebutted would warrant his conviction. If the CRLREV Nos.405 & 406 of 2023 Page 10 of 32 {{ 11 }} Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate would discharge the accused. On the other hand, if the Magistrate with such evidence is satisfied that a prima facie case is made out against the accused to face the trial, the Magistrate would frame charge under section 246(1) of the Code when the Complainant would get further opportunity to lead further evidence in support of the charge and so also the accused would then besides leading evidence would get further opportunity to cross-examine the witnesses already examined at the pre-charge stage with further opportunity to cross-examine the witnesses coming to be examined during the pre-charge stage.
Therefore, under section 245(1) of the Code, the Magistrate has the advantage of the evidence led by the prosecution before him under section 244 of the Code. He has to consider whether if the evidence remains goes unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating materials in the evidence, then the Magistrate would be within its rights to discharge the accused under section 245(1) of the Code.
18. The Magistrate under sub-section 2 of section 245 of the Code has also the power to discharge the accused at any previous stage of the case, i.e., before such any such evidence is lead. However, for discharging an accused under section 245(2) CRLREV Nos.405 & 406 of 2023 Page 11 of 32 {{ 12 }} of the Code, the Magistrate has to come to a finding that the charge is groundless. In that exercise no question arises for consideration of the evidence at that stage as no such evidence had by then had been taken. The Magistrate can take this decision before the accused appears or is brought before this Court or the evidence is lead under section 244 of the Code and that is what is clearly borne out from the words "at any previous stage of the case" which appear in section 245(2) of the Code which would be obviously, before the evidence of the prosecution under section 244(1) of the Code is completed or at any stage prior thereto.
The accused persons when had earlier carried an application under section 482 of the Code before this Court for quashment of the complaint, which was after the order by which the learned S.D.J.M. had taken cognizance of the offences as afore-stated; the stage was not the present as in our hand. The consideration before the Magistrate at that earlier stage while taking cognizance was as to whether there is sufficient ground for proceeding by issuing process against the accused persons. But presently the consideration were as to if as per the evidence let in by the Complainant-Company, a case is made out against the accused persons and that remaining unrebutted, would warrant their conviction.
CRLREV Nos.405 & 406 of 2023 Page 12 of 32 {{ 13 }}
19. In case of Ajoy Kumar Ghose Vrs. State of Jharkhand & Another, (2009) 14 SCC 115, the Hon'ble Apex Court has held: -
"41. Before we approach this question, we must note that while Section 245(2) Cr.P.C. speaks about the discharge of the accused on the ground that the charge is groundless, Section 246(1) operates in entirely different sphere. An order under Section 245(2) Cr.P.C. results in discharge of the accused, whereas, an order under Section 246 Cr.P.C. creates a situation for the accused to face a full-fledged trial. Therefore, the two Sections would have to be interpreted in slightly different manner, keeping in mind the different spheres, in which they operate. The words "or at any previous stage of the case" appearing in Section 246 Cr.P.C. would include Section 245 also, where the accused has not been discharged under Section 245 Cr.P.C., while the similar term in Section 246(2) can include the stage even before any evidence is recorded. It cannot, therefore, be held that the words "at any previous stage of the case" as appearing in Section 245 Cr.P.C., would have to be given the same meaning when those words appear in Section 246 Cr.P.C.
The Bombay High Court, in a decision in Sambhaji Nagu Vs. State of Maharashtra reported in 1979 Criminal Law Journal 390, has considered the matter. While interpreting the words "at any previous stage" under Section 246(1) Cr.P.C., the Learned Single Judge in that case, came to the conclusion that the phraseology only suggested that the Magistrate can frame charge, even before "all" the evidence is completed under Section 244 Cr.P.C. Section 244 Cr.P.C. specifically mandates that as soon as the accused appears or is brought before the Court, the Magistrate shall proceed to hear the prosecution and take all such CRLREV Nos.405 & 406 of 2023 Page 13 of 32 {{ 14 }} evidence as may be produced in support of the prosecution.
Further, Section 245 Cr.P.C. also mandates that "245. When the accused shall be discharged- (1) if, upon taking all the evidence referred to in Section 244 Cr.P.C., the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."
In Section 246 Cr.P.C. also, the phraseology is "if, when such evidence has been taken", meaning thereby, a clear reference is made to Section 244 Cr.P.C. The Bombay High Court came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge, even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the Learned Single Judge in that matter relied on the ruling in Abdul Nabi Vs. Gulam Murthuza reported in 1968 Criminal Law Journal 303.
The similar view seems to have been taken in T.K. Appu Nair Vs. Earnest reported in AIR 1967 Madras 262 and in re. M. Srihari Rao reported in AIR 1964 Andhra Pradesh 226. The similar view has been expressed in P. Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in 1990 Criminal Law Journal 762, where it has been expressed that previous stage is a stage, after recording some evidence. It is neither a stage before recording any evidence at all nor a stage after recording the entire evidence, but is in between. The interpretation, thus, placed on words "at any previous stage of the case", occurring in Section 246(1) Cr.P.C. also appears to be more in consonance with the order of CRLREV Nos.405 & 406 of 2023 Page 14 of 32 {{ 15 }} the Sections numbered in the Code and also with the heading given to Section 246 Cr.P.C., viz., "Procedure where accused is not discharged". The very heading of the Section even indicates that it would come into play only after the matter is examined in the light of Section 245 Cr.P.C. and the accused is not discharged thereunder. Therefore, it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused could be discharged under Section 245 Cr.P.C. and it is only when he finds it otherwise, he could have resort to Section 246 Cr.P.C.
The Learned Single Judge in this ruling has also noted another ruling by the same High Court in Abdul Nabi Vs. Gulam Murthuza reported in 1968 Criminal Law Journal 303 (cited supra). We, therefore, find that consistently, the view taken by the High Court is that there would have to be some evidence before the charge is framed. In the last mentioned case of P. Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in 1990 Criminal Law Journal 762, there is one incorrect observation in respect of a decision of this Court in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. reported in 1971 (3) SCC 239 (cited supra) to the effect that the Magistrate cannot discharge the accused before recording any evidence, whatsoever, under Section 244 Cr.P.C. We have not been able to find out such an expression in the aforementioned case of Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. (cited supra). That was a case under old Section 253(2), which is pari materia to the present Section 245(1). On the other hand, the Court has very specifically stated therein that Section 253(2) gives ample jurisdiction to the Magistrate to discharge the accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of CRLREV Nos.405 & 406 of 2023 Page 15 of 32 {{ 16 }} the case. It is further stated in Para 13 that sub-Section (1) under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-Section (2). Since we have found error in the above mentioned judgment, we have mentioned so.
However, the ruling in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. (cited supra) also supports our earlier finding that the Magistrate has the power to discharge the accused, even before any evidence is recorded and thus, an application for discharge at that stage is perfectly justifiable. However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the clear opinion that some evidence would have to be there for framing the charge.
There is only one judgment of the Andhra Pradesh High Court in Verendra Vs. Aashraya Makers reported in 1999 Criminal Law Journal 4206, which has taken the view that the Magistrate can frame the charge even without any evidence having been taken under Section 244 Cr.P.C. We do not think that is a correct expression of law, as the right of the accused to cross- examine the witnesses at the stage of Section 244(1) Cr.P.C. would be completely lost, if the view is taken that even without Ajoy Kumar Ghose vs State of Jharkhand & Anr. on 18 March, 2009 Indian Kanoon
- http://indiankanoon.org/doc/1735221/ 11 the evidence, a charge can be framed under Section 246(1) Cr.P.C.
The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) Cr.P.C. The accused can show, by way of the cross-examination, that there is no justifiable ground against him for facing the trial and for that purpose, the prosecution would have to offer some evidence. While interpreting this Section, the prejudice likely to be caused to the accused in his losing CRLREV Nos.405 & 406 of 2023 Page 16 of 32 {{ 17 }} an opportunity to show to the Court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored.
Unfortunately, the earlier cases of the same Court, which we have referred to above, were brought to the notice of the Learned Judge. Again, the Learned Judge has not considered the true impact of the clause "at any previous stage of the case", which could only mean that even with a single witness, the Magistrate could proceed to frame the charge.
20. In the case of Union of India Vrs. Prafulla Kumar Samal & Another; (1979) 3 SCC 4; the Hon'ble Apex Court has held that the words used in the context 'not sufficient ground for proceeding against the accused show that the Judge cannot be assumed to be a Post Office to frame the charges at the instruction of the prosecution, and application of judicial mind to the facts of the case is necessary to determine whether a case has been made out by the prosecution for trial. In determining this fact, it is not mandatory to drive into the pros and cons of the matter by the Court.
There is a major distinction as regards discharge of an accused from a warrant case instituted upon a police report and a warrant case instituted upon a private complaint filed under section 200 of the Code.
21. The provision is intended only to filter private complaints and protect the accused from harassment. The test then of 'prima facie' case has to be applied which means a case established by CRLREV Nos.405 & 406 of 2023 Page 17 of 32 {{ 18 }} prima facie evidence which in turn means evidence sufficient in law to raise a presumption of fact in question unless rebutted. The Magistrate is required to consider the evidence with a view to finding out prima facie case for conviction.
Keeping in mind, the allegations arising from out of the contracts entered into between the parties in case of execution of the works, it has to be borne in mind that simply because the Complainant relates to commercial transaction or breach of contract for which the civil remedy is available and being so available has been availed of; that itself is no ground to discharge the accused. The test is whether the evidence recorded at the pre- charge stage discloses a prima facie case to presume that the accused persons are guilty of commission of the offences and the question of conviction would finally be decided on thread bare examination of evidence as would stand recorded in the full- fledged trial applying the tests of reliability and acceptability under section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under section 244 of the Code and he has to consider whether if the evidence remains under rebutted the conviction of the accused would be warranted. If there is no incriminating material in evidence, then the Magistrate proceeds to discharge the accused under section 245(1) of the Code.
CRLREV Nos.405 & 406 of 2023 Page 18 of 32 {{ 19 }}
22. In order to address on the question of the legality and propriety of the impugned order, it is found that in the touchstone of the above settled legal base, the learned S.D.J.M. has refused to discharge the accused persons under section 245(1) of the Code.
23. The narration of the facts constituting the commission of offences are the followings: -
On 29.01.2013 when four numbers of contracts awarded in favour of complainant company were illegally terminated, three Bank Guarantees worth of Rs.2.72 crores were encashed without notice to the Complainant-Company and on 07.02.2013, when the properties of the complainant worth of Rs.9.82 Crores were taken away and controlled and there was restraint upon the Complainant-Company for their entry into the campus and prior to 30th January, 2013, illegal award of the said two numbers of contract works out of four numbers of contract works to accused M/s.SMMPL who were allowed their free entry into the JITPL campus as well as complement sites, in that campus before officially intimating the termination of contract to the Complainant-Company and lastly the manipulation and forgery and fabrication in the measurement Ground Level Measurement Books and the final bill with a view to legally deprived the Complainant- Company as to his legal dues towards the work done.
24. First of all, it is stated that the offences were committed in between 05.04.2013 to 25.04.2013. The accused persons are said to be in collusion with the accused Company-M/s. SMMPL and its CRLREV Nos.405 & 406 of 2023 Page 19 of 32 {{ 20 }} officials as also accused Company-M/s. Query & Brown India Private Limited and had altered, edited the final bill and the supporting documents i.e. joint measurement records, ground level reading in 29 nos. of level books, quantity abstract, which had been submitted by the Complainant-Company, M/s.QIEL for the work done in the Ash Dyke worksite and lastly fabrication of the final bill in order to cause wrongful loss to the tune of Rs.60,83,047/- to the Complainant-Company, M/s. QIEL.
25. It would be profitable at this stage to indicate that the Arbitral Proceeding stood concluded by passing of the award on 21.02.2017. The learned Arbitral Tribunal awarded a sum of Rs.9,71,06,938/- to be paid by the accused-Company-M/s. JITPL to the Complainant-Company, M/s.QIEL with interest @18% per annum from the date of the award till actual payment.
The matter by now has been completely set at rest. As per the order finally passed on 27.09.2023 by the Hon'ble Apex Court in SLP(C) No.19380 of 2023; the awarded amount has been paid and in view of that, full and final satisfaction to that effect has been recorded by the Executing Court on 19.10.2023 in the Execution Proceeding No.158 of 2017. Thus, the accused- Company, M/s.JITPL has paid all the legal dues of the Complainant-Company, M/s.QIEL with interest of more than 17 Crores as per the determination in the Arbitration Proceeding and subsequent final order of the Hon'ble Apex Court. CRLREV Nos.405 & 406 of 2023 Page 20 of 32 {{ 21 }}
26. Admittedly, the Complainant-Company, M/s.QIEL during the recording of the evidence at the pre-charge stage has not tendered any documentary evidence in support of the allegation as regards forgery, manipulation etc. which simply has remained in the version of the Managing Director of the Complainant- Company, M/s.QIEL during his examination at the pre-charge stage. In the Arbitral Proceeding no finding as regards the termination of the contract or encashment of the bank guarantees as tainted with mala fides or for the purpose of misappropriation has been given.
27. At paragraph 763 of the award, the learned Tribunal has stated the following:-
"The meeting dated 06.02.2013 took place after the termination of Contract. It was a Tripartite Agreement. The Respondent at best was working as a facilitator. It has not undertaken any vicarious liability to pay to the contractor any amount in the event the new agency namely M/s. Sinhotia failed and/or neglect to pay any amount towards the price of the Precast Tiles. The Tribunal is unable to agree with the submissions of the Claimant that the Respondent has made itself liable to pay the said amount in terms of the contract as new agency was introduced by the Respondent to the Claimant and the sale of materials took place only to benefit in advance their own works. The Claimant has not brought on record any material to show that the Respondent had undertaken any such responsibility. The rights and liabilities of the parties in the opinion of the Tribunal are contained in the minutes of meeting dated 06.02.2013 only."
CRLREV Nos.405 & 406 of 2023 Page 21 of 32 {{ 22 }}
28. The learned Tribunal at paragraphs 758 to 764 of its award has expressed its disagreement with the aforementioned contention of the Claimant that by reason thereof, the Respondent had undertaken any liability/responsibility to monitor all the payments.
The contention of the Claimant, i.e., the Complainant- Company, M/s.QIEL was that the accused-Company M/s.JITPL had taken the responsibility to monitor all payment transaction and that had undertaken the contractual obligation to see that the new entity (accused-Company-M/s.SMMPL) pays the entire bill amount to it.
29. In the minutes of the meeting dated 06.02.2023, it finds mention that the Complainant-Company, M/s.QIEL expressed their unwillingness to complete the work in other area as work in raw water reservoir and Ash Dyke had been uploaded.
30. The Managing Director of the Complainant-Company, M/s.QIEL in his evidence tendered at the pre-charge stage has admitted that there was a clause for termination of his contract, i.e., Clause No.12.4 and that as per the said contract, the date of completion of aforesaid contract was scheduled to be on or before 28.02.2012 and that the said contract work was not completed by that date. He has again admitted that on 02.02.2013, he had issued one letter to one Mr.Ashok Kumar Jain, Vice President (Head CRLREV Nos.405 & 406 of 2023 Page 22 of 32 {{ 23 }} Civil) of accused-Company-M/s.JITPL whose contents he admits and therein he has not mentioned the name of any of the Officers of the accused-Company-M/s.JITPL to have restrained them in any manner.
It has also been admitted by him that on 14.02.2013 he had issued one letter to accused Sunil Kumar Agrawal, the Liaison Officer and Ex-Director of the accused-Company-M/s.JITPL wherein he had not indicated the role of the accused persons in selling the materials and on the other hand in that letter he admits to have written that he was asked to sale those materials. As per his evidence, he had handed over the Bank Guarantees to the accused-Company-M/s.JITPL for performance of the contract. He also admits to have filed no such document indicating the conspiracy as alleged to have been hatched by the accused persons.
31. It would also be pertinent to state herein that the evidence of the said Managing Director of the Complainant-Company, M/s.QIEL is to the effect that when the work was in full swing, the accused-Company-M/s.JITPL in collusion with the accused- Company-M/s.SMMPL terminated the contract, encashed the Bank Guarantees and obstructed the Complainant-Company, M/s.QIEL to enter the worksite and that by then the accused- Company M/s. JITPL had already inducted the accused- CRLREV Nos.405 & 406 of 2023 Page 23 of 32 {{ 24 }} Company-M/s.SMMPL to start construction, utilizing the materials of the Complainant-Company, M/s.QIEL.
It is, however, next stated that a meeting was convened by accused No.4 inside the premises of JITPL for settlement of the dispute. In the said meeting, accused persons agreed to pay for entire stock of sand and precast tiles as per the rate already mentioned above which amounts to 91.80 lacs. However, they were paid with a sum of Rs.53,00,000/- and remaining Rs.38.8 lacs was not paid till date despite several demand notices. They also denied to pay the said amount. They misappropriated the said amount for their own purpose and illegal gain. They have approached the Arbitration Tribunal and the Tribunal in its award declined the claim with respect to sand and precast tiles citing that the contract is a triparty agreement. Hence the complaint petition. The position now stands that the Complainant- Company, M/s.QIEL has nothing to receive from the accused- Company, M/s. JITPL in view of full and final satisfaction of the arbitral award by payment in entirety.
32. Having led the evidence as above at the pre-charge stage, the Complainant-Company, M/s.QIEL has expressed not to lead any further evidence at that stage and thus with such evidence urged before the Court to proceed further by framing charge against the accused persons.
CRLREV Nos.405 & 406 of 2023 Page 24 of 32 {{ 25 }}
33. The learned S.D.J.M. having narrated the allegations and going through the Arbitral Award has expressed its agreement with the view of the learned Tribunal with such termination of contract by the accused-Company-M/s.JITPL which at that stage appeared to be illegal. So, it appears to be not on the basis of any evidence taken on record.
It is next stated that, therefore, the accused persons need to prove their stand with regard to such termination of the contract and encashment of Bank Guarantees by adducing evidence. It has further stated that the amount in full has not been paid to the Complainant-Company, M/s.QIEL which is no more prevails as the position/ situation. The views taken above are not deriving any support from the evidence recorded during the pre-charge stage. It has not been said that the evidence let in by the Complainant-Company, M/s.QIEL under section 244 of the Code give rise to a presumption as to all those facts constituting the commission of offences by these accused persons until rebutted.
34. The Managing Director of the Complainant-Company, M/s.QIEL in his evidence at the pre-charge stage has stated that on 22.01.2013, one of those contract was fully completed and it was closed; whereas the date of completion of the aforesaid contract was scheduled to be on or before 28.02.2012 by which date the contract works were not completed. Admittedly, there stands the clause for termination of the contract. He further states CRLREV Nos.405 & 406 of 2023 Page 25 of 32 {{ 26 }} that on 28th and 29th January 2013 in the meeting held, the accused Company-M/s. JITPL had directed him and its officials to close all projects, leave the worksite to which he had then not given any reply, but they immediately encashed all the Bank Guarantees worth of Rs.2.72 Crores which occurred in between 29th January and 2nd February 2013. It is not said that in that situation, it was impermissible encashment of Bank Guarantees. He simply states to have come to know that the accused Company-M/s. SMMPL by then had already been appointed to execute the work in the site. This is the sole version of the Managing Director of the Complainant-Company, M/s.QIEL. He further states that in the said meeting, he had raised the protest for illegal termination of the contract, and it was finally agreed that measurement of the work done by the Complainant-Company at the site would be taken and accordingly, final bill would be paid. There was in fact the measurement in the worksite in compliance to the decision taken in the meeting. The Complainant-Company, M/s.QIEL submitted final bills in all the contracts. Subsequently, there being dispute when payment in full was not made by the accused Company-M/s. JITPL to Complainant-Company, M/s.QIEL, there has been invocation of the arbitration clause as contained in the contract which by now has stood closed in every respect.
As already stated, the award passed in the arbitral proceeding has already attained its finality after being carried to CRLREV Nos.405 & 406 of 2023 Page 26 of 32 {{ 27 }} the Hon'ble Apex Court and as directed by the Hon'ble Apex Court, the entire awarded amount has been paid and the Complainant-Company, M/s.QIEL and the Executing Court has noted its full and final satisfaction of the said award in closing the Execution Proceeding. The documents which are said to have been forged and fabricated and also any other documents in connection with the case have not been placed by the Complainant-Company, M/s.QIEL at the pre-charge stage to take a note of any of those or even the copy of the same which was with the Complainant-Company, M/s.QIEL. Simple version of the Managing Director of the Complainant-Company, M/s.QIEL cannot make out prima facie case of forgery, fabrication of records. The correspondences made by the Complainant- Company, M/s.QIEL do not reveal any specific role played by those named accused persons who are said to have been in connivance with each other for the purpose. The Bank Guarantees had been handed over to the accused Company-M/s. JITPL for performance of the contract. No such document in any way hinting at the conspiracy as alleged to have hatched by the accused persons has been let in evidence.
35. Having laid the evidence as above at the pre-charge stage, the Complainant-Company, M/s.QIEL has expressed not to lead any further evidence at that stage and thus with all such evidence CRLREV Nos.405 & 406 of 2023 Page 27 of 32 {{ 28 }} it was urged before the Court to proceed further against the accused persons by framing charge.
36. Learned S.D.J.M. having narrated the allegations and going through the deposition of the Managing Director of the Complainant-Company, M/s.QIEL and reflecting the same in entirety without stating as to how those evidence even remaining unchallenged make out in themselves prima facie case against the accused persons in raising the presumption of the facts constituting the offences that a prima facie for conviction surfaces. It has rather noted that all the questions and allegations made against the accused persons in the complaint can be clarified in the trial after adduction of evidence by both sides but not at this stage. This is completely irrelevant which is not a ground relevant for consideration of the application for discharge under section 245(1) of the Code. In respect of the accused Shyam Sundar Jindal, it had been said as under:-
"So far as the accused no.4 i.e. Shyam Jindal is concerned from the complaint petition it reveals that under para-14 of the complaint petition it is mentioned that the accused no.2,3,4 and 5 are the Liaison Officer-cum-Ex-Director, the Chairman of JITPL/Jindal Group, and the General Manager Accounts respectively of the accused no.1's company. Even though the accused no.4's name was conspicuously absent from the list of high level executives at the accused no.1's company, he is the final authority and makes all decisions in conjunction with a few elite members on all matters related CRLREV Nos.405 & 406 of 2023 Page 28 of 32 {{ 29 }} to the Derang Power Plant project and signs off in head office notes/ files with a cryptic designation No.1. It is submitted on behalf of the Accused no.4 that he is neither a Director nor the Chairman of accused no.1's company. They relied upon annexure-1 consists of two documents, one is list of directors downloaded by the complainant from the website of Ministry of Corporate Affairs and list of Board of Directors obtained from the website of JITPL. Both the documents proves that the accused no.4 is not there as one of the directors or members of Board of Directors. Buit from the case record, it is ascertained that after cognizance was taken summon was issued to accused persons and the accused no.4 has been appeared in his court through his Advocate by filing v-nama wherein his designation was clearly mentioned that he is the Chairman of company of JITPL i.e. accused no.1. Further the personal appearance of the accused no.4 has been dispensed with by this court. From the cause title of the application filed U/s.205 Cr.P.C. it shows that the said Shyam Jindal has been associated with the said JITPL. Further the accused no.4 as per the order of this court passed by disposing petition U/s.205 Cr.P.C. filed an undertaking. In that undertaking the accused no.4 has clearly stated that he shall not dispute his identity in future case. So, his character is in doubt, it can be only clarified by leading evidence at the time of trial."
37. In respect of accused Company-M/s. SMMPL and its Director, it has been said as follows:-
"So far the accused no.8 and 9 are concerned the complainant in his complaint petition has stated that the joint measurement record wherein the quantities of 9097.10 sqm and 353.772 cum were approved and accepted by all three parties have no alterations/cross out whatsoever/and hence CRLREV Nos.405 & 406 of 2023 Page 29 of 32 {{ 30 }} the accused no.1 company was duty bound to explain before the Ld. Tribunal as to how the reduced work done quantities which are part of the forged/fabricated final bill is arrived as to justify the deductions. But on this aspect the accused no.1 company has miserably failed and did not produced either the site engineer i.e. Accused no.6 or the representative of M/s. Currie Brown i.e. accused no.10 before the Ld. Tribunal who have attested the work quantities in column-3 while approving Rs.1,53,08,816/- final bill and who in collusion with the accused no8 and 9 two weeks later had fabricated new joint measurement records in the name of complainant company incorporating work quantities.
The complainant under para-9 of his evidence has also deposed that before the arbitrator they had requested the accused no.1 i.e. JITPL to file the running account bills raised by new contractor i.e. i.e. accused no.8 to find out if the deduction made had been claimed by the accused no.8. But the accused no.1 did not come forward to file the said documents. Hence accused no.8 and 9 have also made parties in this proceeding as a result of filing of such false and forged document he had incurred pecuniary expenditure as stated in his complaint petition. Ld. Advocate for the accused no.8 and 9 submitted that the complaint has miserably failed to establish the ingredient of the offences as alleged against the accused persons for warranting their conviction under which sections cognizance has been taken. He submitted that the complaint petition has been filed purely with a vindictive mind and to spite vengeance on the accused persons. An out an out civil dispute has been given a criminal colour only after some of the claims was rejected by the arbitral tribunal. From the contention of the complaint petition as well as from the evidence adduced by the complainant, the involvement of CRLREV Nos.405 & 406 of 2023 Page 30 of 32 {{ 31 }} accused no.8 and 9 have been clearly found. Whether they are innocent and having no role to commit the offences as alleged against them, that can only be proved at the time of trial."
38. The view taken above however does not derive any support from the evidence recorded at the pre-charge stage. The evidence laid by the Complainant-Company, M/s.QIEL under section-244 of the Code as above referred to, even upon their acceptance in entirety do not make out prima facie case against the accused persons in the direction of commission of the offences so as to stand charged. All these do not appear to impute criminality upon the accused persons for their said actions giving rise to the dispute which having been raised in the arbitration proceeding, has been final followed by award of the amount which too has been satisfied in entirety as per the final order of the Hon'ble Apex Court. This Court thus taking the evidence as available which have been referred and touched upon on their face value and accepting all those as such records that no prima facie case against the accused persons for any of those offences is made out so as to frame the charges for the noted offences in placing the accused persons to full-fledged trial.
39. In the wake of all the aforesaid, it is held that the order impugned in these Revisions is liable to be set aside. Accordingly, the impugned order dated 20.07.2023 passed 1CC Case No.57 of CRLREV Nos.405 & 406 of 2023 Page 31 of 32 {{ 32 }} 2018 by the learned S.D.J.M., Talcher is set aside and the accused persons are discharged under section 245(1) of the Code.
40. Resultantly, the Revisions stand allowed.
(D. Dash), Judge.
Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 24-Jan-2024 17:36:06 CRLREV Nos.405 & 406 of 2023 Page 32 of 32