Madras High Court
M/S.Sony Caargo Movers vs The Superintendent Of Police on 27 November, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 08.10.2014 Date of decision: 27.11.2014 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN Criminal O.P. No.18099 of 2014 and M.P.No.1 of 2014 1.M/s.Sony Caargo Movers, rep. by its proprietor, Mr.S.K.Singh, S/o.Late B.N.Singh, No.19/44, Edapalayam Street, Waltax Road, Chennai 600 003. 2.Shri Dharmendra Kumar 3.Yamuna Prasad Singh ... Petitioners vs. The Superintendent of Police, CBI/ACB, Shasthiri Bhavan, No.26, Haddows Road, Chennai 600 006. ... Respondent PRAYER : Criminal Original Petition filed under Section 482 of the Criminal Procedure Code praying to call for the entire records pertaining to F.I.R.No.RCMA 12014A 22 dated 07.06.2014 u/s.120(B) r/w 420 IPC and 13(2) r/w 13(i)(d) of the Prevention of Corruption Act, 1988 on the file of the Superintendent of Police, CBI/ACB, Shasthiri Bhavan, No.26, Haddows Road, Chennai 600 006 and quash the same. For Petitioners : Mr.K.M.Vijayan, Senior Counsel, for M/s.R.Selvakumar For Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI Cases O R D E R
In this petition, the petitioners pray for quashing F.I.R.No.RCMA 12014A 22 dated 07.06.2014 u/s.120(B) r/w 420 IPC and substantive offence, and 13(2) r/w 13(i)(d) of the Prevention of Corruption Act, 1988 on the file of the Superintendent of Police, CBI/ACB, Shasthiri Bhavan, No.26, Haddows Road, Chennai 600 006.
2. The petitioners are the registered lease holders of the Southern Railway. The petitioners were leased parcel space / parcel van having carrying capacity of 23 tons by Train No.16031/16032 for the transportation of parcels from Chennai Central to Jammu Tawi and back for a period of three years. As per clause 16 of the lease agreement, provision has been made for overloading of parcel van space and penalty and provides for re-weighment. As per clause 26.3 of the lease agreement, in case of dispute, the matter has to be resolved through arbitration.
3. On 1.6.2014 at New Delhi, the first petitioner loaded 22,435 kgs of parcels in Train No.16031/16032 in VPH No.SR-03843, the second petitioner loaded 21,370 kgs of parcels in Train No.16031/16032 in VPH No.SR-99833 and the third petitioner loaded 19,000 kgs of parcels in Train No.16031/16032 in VPH No.SC 06829 against the permissible weight of 23,000 kgs in all the three wagons. The parcel vans reached Chennai Central on 03.06.2014 at about 10.30 hours and the respondent railway authority conducted a general surprise checking and the parcel vans leased out to the petitioners were weighed at Electronic In-motion Weigh Bridge at Royapuram, Southern Railway, and found that there was overweight of 13.14 Tons in Wagon SR No.03843, SR 99833, SC 06829. Without considering the request of the petitioners for manual weighing, the respondent proceeded to register FIR against the petitioners and unknown public servants and others for offences under u/s.120(B) r/w 420 IPC and 13(2) r/w 13(i)(d) of the Prevention of Corruption Act, 1988 and this petition is filed to quash the FIR against the petitioners.
4. Mr.K.M.Vijayan, learned Senior Counsel, representing Mr.R.Selva Kumar, learned counsel for the petitioners, submitted that the registration of FIR is a clear abuse of process of law and even according to the lease agreement between the railway authorities and the petitioners and as per the provisions of the Railways Act, 1989 and the Railways (Punitive Charges for Overloading of Wagon) Rules, 2007, the railways are entitled to levy only penalty for overloading. Even assuming that there was overloading of wagons as contended by the respondent, no criminal liability can be fastened and there is no question of cheating or fraud involved on the part of the petitioners and when the petitioners dispute weighment as conducted by the respondent, the petitioners requested for manual reweighing, and without conducting the same, it cannot be presumed that the petitioners have loaded goods in excess of the prescribed quantity and therefore, committed the offence. The learned Senior counsel further submitted that even assuming that the wagons which were taken on lease by the petitioners are overloaded to the tune of 13.14 tons as per the prosecution case that will not lead to any criminal offence and only civil liability can be fastened and the petitioners can be directed to pay penalty and the act of the petitioners cannot come under the provision of definition of cheating. He further submitted that FIR has been filed against the petitioners even under the provisions of the Prevention of Corruption Act, 1988 and admittedly, the petitioners are not government servants and no government servant's name has been mentioned in the FIR and no allegations have been made in the FIR that the petitioners attempted to give any illegal gratification to any government servant and in the absence of any such allegation of ingredients of section 13 of the Prevention of Corruption Act, the petitioners cannot be prosecuted for the offence under the Prevention of Corruption Act. The learned Senior Counsel further submitted that the respondent without following the provisions of CBI Manual and without conducting any preliminary enquiry ought not to have straight away registered the FIR and therefore, the FIR is liable to be quashed. The learned Senior Counsel further drew my attention to Section 73 and 180-F of the Railways Act and also the provisions of the Railways (Punitive Charges for Overloading of Wagon) Rules, 2007 and various clauses of the lease agreement including clauses 16 and 17 between the petitioners and the railways and submitted that even in case of overloading, the petitioners are liable to pay penalty and therefore, no criminal case can be filed against the petitioners. He also relied upon the judgment rendered in CDJ 2011 DHC 049 in the matter of Shri Pankaj Mohan Associates and another Versus Secretary Railway Board and others in W.P.(C) No.9342 of 2007 etc., batch, on the file of the High Court of Delhi and submitted that no prosecution can be launched on the ground of overloading and therefore, the FIR is liable to be quashed. He also relied upon the judgement of this Court reported in CDJ 2014 MHC 2866 in the matter of Dr.MCR Vyas & Others Versus The Inspector of Police, CBI Anti Corruption in support of his contention that without conducting preliminary enquiry and without following the CBI Manual, the FIR cannot be registered, and therefore, it is also liable to be quashed on that ground.
5. Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases, submitted that there is no impediment for the respondent to register FIR on the basis of source of information and after collecting information and on being satisfied, the case was registered against the petitioners for the aforesaid offences and it is in the preliminary stage and even in the FIR, it has been specifically stated that the accused are the petitioners and unknown public servants and others and submitted that only during investigation, the respondent can ascertain whether the railway officials are involved in the overloading by causing loss to the railways and having regard to the admitted fact that wagons are found overloaded by which the railway sustained loss, the FIR was registered and the same cannot be quashed at this stage. He also relied upon the judgments reported in AIR 1992 SUPREME COURT 604 in the matter of State of Haryana and others v. Ch.Bhajan Lal and others and (2010) 3 Supreme Court Cases (Cri) 1201 in the matter of Iridium India Telecom Limited Versus Motorola Incorporated and others, in support of his contention.
6. The point for consideration in this petition is whether the FIR is liable to be quashed as the allegations disclose only civil liability as contended by the learned Senior Counsel for the petitioners?
7. To appreciate the contention of the learned Senior Counsel for the petitioners and the learned Special Public Prosecutor, we will have to see the contents of the FIR. It is stated in the FIR that on receipt of reliable information that High Capacity Parcel Vans herein referred to as VPU/H in Train No.16032 from Jammu Tawi / Andaman Express arriving at Platform No.7 at Chennai Central Railway Station on 03.06.2014 are overloaded, a Joint surprise Check by the officials of the CBI, ACB, Chennai, and Railways was conducted and in the surprise check, 4 VPH were weighed at the Electronic In-motion Weigh Bridge at Royapuram and the following weight was noticed in the four wagons.
Sl.No. Wagon No. Tare Wt.
Tons Carrying Capacity Tons Gross Wt.
Tons Net Wt. Tons Over wt. Tons 1 SC 06829 32.00 23.00 57.88 25.88 2.88 2 SR 03843 32.00 23.00 58.64 26.64 3.64 3 SR 99833 32.00 23.00 61.62 29.62 6.62 4 SR 05829 32.00 23.00 51.36 19.36 0.00 Total 13.14
8. It is the further case of the prosecution that the permissible weight is 23,000 kg per VPH at New Delhi Railway Station and the petitioners are the lessees of those VPU/H and neither they declared the overload nor paid penalty amount to 17.17 laks approximately which was the wrongful loss caused to the Railways and wrongful gain to the petitioners and the petitioners have been habitually committing the offence. It is further stated that by dint of conspiracy with unknown railway officials, the petitioners brought overloaded VPU/H to Chennai Central and by their act, they also endangered the safety of the passengers travelling in the said train and therefore, they committed the various offences as stated in the FIR.
9. Therefore, we will have to see whether the allegations in the FIR attract the penal provisions and also the provisions under the Prevention of Corruption Act as contended by the learned Senior Counsel appearing for the petitioners.
10. Before going into the aspect, we will have to see the law regarding quashing of FIR and also the law relating to cheating.
(i) In the judgment reported in AIR 1989 Supreme Court 1 in the matter of State of Bihar v. Murad Ali Khan and others, it is held as follows:-
It is trite that jurisdiction under section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders as may he necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry whether the allegations in the complaint are like to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence, the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell-out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the Process of the court or not.
(ii) In the judgment reported in 1992 SUPREME COURT 604 in the matter of State of Haryana and others v. Ch.Bhajan Lal and others, it has been held as follows:-
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
(iii) In the judgment reported in (2010) 3 Supreme Court Cases (Cri) 1201 in the matter of Iridiumm India Telecom Limited Versus Motorola Incorporated and others, it has been held as follows:-
76. ...This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution.
11. Bearing these principles in mind, we will have to see whether the FIR is liable to be quashed.
12. As stated supra, the main charge levelled against the petitioner is under Section 120(B) r/w 420 IPC and for substantive offence and the provisions of the Prevention of Corruption Act. In the FIR, it has been stated that permissible weight is 23000 kgs per VPH whereas the petitioners overloaded in 4 VPH and the total weighment of overloading is 13.14 tons and by that, the petitioners caused wrongful loss to the railway department and corresponding wrongful gain to the petitioners.
13. Section 415 IPC has been dealt with in the judgment reported in (2010) 3 SCC (Cri) 1201 : (2011) 1 Supreme Court Cases 74 supra, which is as follows:-
77. In the present case, the parties are yet to place on the record the entire material in support of their claims. The issues involved are of considerable importance to the parties in particular, and the world of trade and commerce in general. In such circumstances, in our opinion, the High Court ought to have refrained from indulging in detailed analysis of very complicated commercial documents and reaching any definite conclusions.
78. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. "the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage." Having said so, the High Court proceeded to do exactly the opposite.
14. In the judgment reported in (2009) 8 SCC 751 in the matter of Mohammed Ibrahim and Others- versus- State of Bihar and Another, the Hon'ble Supreme Court has dealt with forgery under Sections 467 or 471 IPC. As per Section 464 IPC making a false document dishonestly or fraudulently amounts to offence. As per section 415 IPC, whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any proper-ty to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to have committed the offence of cheating.
15. In the judgment reported in 1999 (2) SCC 617 in the matter of State of UP vs. Ranjit Singh, the Hon'ble Supreme Court held as follows:-
26. The Penal Code however defines `fraudulently', an adjective form of the word `fraud', in section 25, as follows :
"25. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in section 24 as follows :-
"24. 'Dishonestly'- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly".
28. To `defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (sec.206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (sec. 207).
(iii) Fraudulent suffering or obtaining a decree (sec. 208 and 210)
(iv) Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)
(vi) Fraudulent acts relating to stamps (sec. 261-261)
(vii) Fraudulent use of false instruments/ weight/measure (sec.264 to 266)
(viii) Cheating (sec. 415 to 420)
(ix) Fraudulent prevention of debt being available to creditors (sec. 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423).
(xi) Forgery making or executing a false document (sec. 463 to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477)
(xiii) Fraudulently going through marriage ceremony (sec.496).
It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.
16. Therefore, unless the dishonesty or fraud is specified as an offence under the Code, it cannot be stated that the offence has been committed. It is stated in the FIR that by reason of overloading, the petitioners sustained gain and the Railways sustained loss and therefore, the allegations make out a prima facie case that an offence of cheating has been made out.
17. In the judgment reported in (2010) 3 Supreme Court Cases (Cri) 1201, the Hon'ble Supreme Court by disapproving the judgement of the High Court, held that, the High Court has to accept the allegations in the complaint on its face value and the true or falsity cannot be considered by High Court at this stage.
18. Therefore, having regard to the allegations made in the FIR that overload was done by the petitioners by which the petitioners made wrongful gain and the Railways sustained wrongful loss and therefore, the allegations in the complaint make out a case of cheating. Further, the declaration given by the petitioners regarding the weighment whether that amounts to making a false document punishable under Section 464 IPC can be considered during investigation. Therefore, at this stage, it cannot be held that no criminal case has been made out and the ingredients of offence punishable under section 420 IPC has not been made cannot be accepted.
19. Further, the FIR also shows that the petitioners have committed the offence under Section 120(B) r/w 420 IPC and other substantial offence and this can be considered after the final report is filed. At this stage, it is pre-mature to hold that no offence has been made out on the basis of the complaint.
20. The argument of the learned Senior Counsel that overloading is not a punishable one and the railway authorities can only impose penalty by referring to Section 73 and 180(F) the Railways Act, 1989 and the provisions of the Railways (Punitive Charges for Overloading of Wagon) Rules, 2007 and therefore, no criminal liability can be fastened on the petitioners, cannot also be accepted. No doubt, under Section 73 of the Railways Act, it is stated that where a person loads goods in a wagon beyond its permissible carrying capacity, railway administration may recover from the consignor, the consignee or the endorsee the charges by way of penalty or such rates as prescribed before the delivery of goods. Under section 78 of the Railways Act, railway administration may before the delivery of consignment has right to re-measure, re-weight or re-classify any consignment, re-calculate the freight and other charges. Under section 180-F, no Court shall take cognizance of an offence mentioned in sub-section (2) of section 179 except on a complaint made by the officer authorised. As per Section 163, if any person required to furnish an account of goods under section 66, gives an account which is materially false, he and, if he is not the owner of the goods, the owner also shall, without prejudice to his liability to pay any freight or other charge under any provision of this Act, be punishable with fine which may extend to five hundred rupees for every quintal or part thereof such goods. Therefore, section 180-F is a bar only when a person committed the offence as stated in Section 179 and the offence of cheating is not included in section 179 of the Railways Act and therefore, there is no impediment for taking cognizance of the FIR by the Court.
21. Further, whether the petitioners have deliberately overloaded the goods or whether the wagons were overloaded as contended by the prosecution or whether the respondent is entitled to prosecute the petitioners without re-weighing the wagons manually can be considered only during investigation and at this stage, it cannot be presumed that the petitioners have not committed the criminal offence and only penalty or find can be imposed as per section 73 of the Railways Act and as per rule 3 of the Railways (Punitive Charges for Overloading of Wagon) Rules, 2007, cannot be accepted. Further, whether the transaction is civil transaction or involves criminal offence can be considered only after investigation and final report is filed. At this stage, it is too premature to consider that only civil liability arises and not criminal liability. Therefore, the contention of the learned Senior Counsel cannot be accepted.
22. The other grounds raised by the learned Senior Counsel that without conducting preliminary enquiry and without following the CBI Manuel, FIR has been registered, cannot also be considered at this stage for the very same reason.
23. In the result, I do not find any substance in the argument advanced by the learned Senior Counsel for quashing the FIR and in my opinion, it is too premature to quash the FIR at this stage having regard to the allegations made against the petitioners.
24. The contention of the learned Senior Counsel that no public servant has been arrayed as accused and the petitioners cannot be charged for offence under Section 13 of the Prevention of Corruption Act, cannot also be accepted as it has been stated in the FIR, public servants were also involved or whether any public servants are involved in the conspiracy or whether any railway officials have conspired with the petitioners in suppressing the correct weighment of the goods loaded in the wagons can be ascertained only through investigation. At this stage, it cannot be stated that no offence under the provisions of Prevention of Corruption Act is made out.
25. In the result, the Criminal O.P. is dismissed. The connected Miscellaneous Petition is closed.
27.11.2014 Index: yes Internet: yes asvm To The Superintendent of Police, CBI/ACB, Shasthiri Bhavan, No.26, Haddows Road, Chennai 600 006.
R.S.RAMANATHAN, J.
(asvm) Criminal O.P. No.18099 of 2014 and M.P.No.1 of 2014 27.11.2014