Madhya Pradesh High Court
Prasanna Kumar Palla vs The State Of Madhya Pradesh on 28 November, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 28th OF NOVEMBER, 2023
M.CR.C. NO. 56603 OF 2022
BETWEEN:-
KALYAN SUNDER, S/O. MR. N.S. SASTRY, AGED
ADULT, ADDRESS: HOUSE NO.3-7-400/RV/8,
SUNCITY, BANDLAGUDA, HYDERABAD
(TELANGANA STATE)
.....PETITIONER
(BY SHRI SIDDHARTH SHARMA - ADVOCATE
AND
1. STATE OF MADHYA PRADESH THROUGH POLICE
STATION MISROD, DISTRICT BHOPAL (M.P.)
2. M.P. ROAD DEVELOPMENT CORPORATION,
THROUGH ITS MANAGING DIRECTOR, HEAD
OFFICE 45-A, ARERA HILLS, BHOPAL (M.P.)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI ALOK AGNIHOTRI -GOVT. ADVOCATE)
(RESPONDENT NO.2 BY SHRI ANVESH SHRIVASTAVA - ADVOCATE)
M.CR.C. No. 9342 of 2023
BETWEEN:-
SRIDHAR CHERUKURI, S/O.MR. JAGANNATH RAO,
AGED ABOUT 55 YEARS, OCCUPATION-
AGRICULTURIST/BUSINESS, R/O. FLAT NO.106,
ROCKLEVEZ APARTMENTS, GULMOHAR AVENUE,
ROAD NO.12, BANJARA HILLS, HYDERABAD
(TELANGANA STATE)
.....PETITIONER
(BY SIDDHARTH SHARMA - ADVOCATE)
2
AND
STATE OF MADHYA PRADESH THROUGH POLICE
1.
STATION MISROD, DISTRICT BHOPAL (M.P.)
M.P. ROAD DEVELOPMENT CORPORATION,
2. THROUGH ITS MANAGING DIRECTOR, HEAD
OFFICE 45-A, ARERA HILLS, BHOPAL (M.P.)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI ALOK AGNIHOTRI -GOVT. ADVOCATE)
(RESPONDENT NO.2 BY SHRI ANVESH SHRIVASTAVA - ADVOCATE
M.CR.C. No. 56601 of 2022
BETWEEN:-
PRASANNA KUMAR PALLA, S/O. LATE P.N.V. NAIDU,
AGED ADULT, ADDRESS: FLAT NO.8-3-167/R/116,
BHAWANI SHAKTI HOMES, HYDERABAD
(TELANGANA STATE)
.....PETITIONER
(BY SIDDHARTH SHARMA - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
1.
STATION MISROD, DISTRICT BHOPAL (M.P.)
M.P. ROAD DEVELOPMENT CORPORATION,
2. THROUGH ITS MANAGING DIRECTOR, HEAD
OFFICE 45-A, ARERA HILLS, BHOPAL (M.P.)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI ALOK AGNIHOTRI -GOVT. ADVOCATE)
(RESPONDENT NO.2 BY SHRI ANVESH SHRIVASTAVA - ADVOCATE
.............................................................................................................................................
Reserved on : 31.10.2023.
Pronounced on : 28.11.2023.
................................................................................................................................................
These petitions having been heard and reserved, coming on
for pronouncement this day, the court pronounced the following:
ORDER
As common question is involved in all the three petitions, 3 therefore, the same are being decided by this common order. However, for the sake of convenience, the facts are being derived from M.Cr.C. No.56603/2022.
2. The petitioner by the instant petition filed under Section 482 of Cr.P.C. is seeking to quash the FIR registered against him vide Crime No.294/2020 for the offence punishable under Section 409 of IPC at Police Station Misrod, District Bhopal as also all subsequent criminal proceedings arising out of registration of said FIR.
3. To answer the question raised before this Court by counsel for the parties by submitting their rival contentions, it is required to adumbrate the facts of the case.
4. That, the Company M/s. Transstroy Bhopal Bypass Tollways Pvt. Ltd. was awarded a contract for a period of 15 years, which starts from the year 2010 onwards to construct the Bhopal Bypass Toll. An agreement was executed between the Company and the respondent No.2 on 18.11.2010. The copy of agreement is available on record as Annexure P/10. The road took three years to be completed and was finally completed on 26.05.2013 and after its completion, the tollway was under operation. Since it was a BOT contract as per the agreement, the concessionaire (M/s. Transstroy Bhopal Bypass Tollways Pvt. Ltd.) was at liberty to collect toll from the passengers and to repay the loan amount that was taken from the consortium of banks. As per the BOT, it was completely funded by M/s. Transstroy Bhopal Bypass Tollways Pvt. Ltd. as well as loan taken from various banks of which Axis Bank was the lead Bank.
5. The FIR was lodged against the petitioner at the instance of respondent no.2 relying on the opinion given by the Advocate General, 4 who was of the opinion that during the course of collection of toll from the passengers, petitioner and his accomplices did not deposit the total collected amount in the escrow account and started misappropriating the said amount for their personal use and as such, violated the terms of the contract prescribing as to in what manner the funds collected from the users shall be discharged. After having knowledge about the said misappropriation, the respondent No.2 and its officers gave notice/warning to the petitioner and his accomplices that collecting amount from the users and not depositing the same in the escrow account is nothing but a criminal breach of trust punishable under the law. The copies of notices have been filed by the respondents along with their reply as Annexure R/1.
6. Despite receiving notice, no heed was paid by the petitioner and thereafter it was decided by the respondent No.2 to lodge an FIR and as such, they made a complaint at Police Station Misrod, Thana-Bhopal because the toll collection booth situates within the territorial jurisdiction of that police station.
7. As per allegation made in the FIR, basically the respondent No.2 relied upon the opinion given by the Advocate General who opined that money was collected from public but not deposited in the escrow account and as such, the petitioner has been made an accused. The period of incident was from 2014 to 2020 and FIR got registered on 09.07.2020. As per the petitioner, the FIR and the allegations contained therein are based upon clause 22.3 of the Concessionaire Agreement which reads as under:-
22.3 Traffic Sampling.
22.3.1.For determining the actual traffic on the Project Highway MPRDC shall be entitled to inspect the relevant 5 records of the Concessionaire and may at its own cost, undertake traffic sampling substantially in the manner set forth in Schedule-O at such frequency as it may deem appropriate, but in no case for less than a continuous period of 7 (seven) days. The Concessionaire shall provide such assistance as MPRDC may reasonably require for such traffic sampling.
22.3.2 If the traffic sampling pursuant to this Clause 22.3 demonstrates that the actual traffic is more than the traffic reported by the Concessionaire, the traffic determined by thetraffic sampling shall be deemed to be the traffic for purposes of this Agreement and in the event of any Dispute relating to the traffic sampling, the Dispute Resolution Procedure shall apply. For the avoidance of doubt, Realisable Fee for any comparable period shall be calculated with reference to the traffic determined hereunder.
(ii) As per the said clause, any disagreement with regard to traffic [[ survey/sampling, it was clear that the joint sampling is to be conducted. Furthermore, joined sampling was proposed in the minutes of meeting dated 10.06.2019 (Annexure P/20, Pg. 464-
465).
(iii) Meeting was also attended by General Manager of Respondent no. 2 along with various other officials. Even M/s Technova Solutions, which is an official consultant for Respondent No. 2 has given a traffic survey report in favour of M/s Transstroy Bhopal Bypass Tollways Pvt. Ltd. (Annexure P/5. Even the new tender floated by the Respondent No. 2 for operating the toll plazas has been issued for a sum of Rs. 40 crores (Annexure P/14) which is much lower than the figure reached upon by the Respondent No.
2."
8. It is averred by the petitioner that as per the said clause, for any disagreement with regard to traffic survey/sampling, a joint sampling is to be conducted and that joint sampling was proposed in the minutes of meeting dated 10.,06.2019 (Annexure P/20). The General Manager of the respondent No.2 also attended the said meeting along with various other officials. The consultant of respondent No.2 has given a traffic survey report in favour of M/s. Transstroy Bhopal Bypass Tollways Pvt. Ltd. A new tender was also floated by the respondent No.2 for operating 6 the toll plazas and the value of remaining work was assessed at Rs.40 crores.
9. As per the petitioner, the survey conducted by the officials of respondent No.2 was completely baseless and was given effect behind the back of M/s. Transstroy Bhopal Bypass Tollways Pvt. Ltd. According to the petitioner, no joint survey was conducted as per the prescribed norms of the Concessionaire Agreement. The survey conducted was a loosely prepared traffic survey, that too by the officials of respondent No.2. According to the petitioner, it is completely illegal on the part of respondent No.2 to conduct ex parte survey. The FIR and the contents thereon are based upon the said survey report.
710. The contract was terminated in the year 2018 and the Company has gone into liquidation as per order dated 18.09.2019 of NCLT. The documents in this regard have also been filed by the petitioner i.e. Annexure P/9. As per the petitioner, in the agreement itself there is a clause for availing the remedy of arbitration in case any dispute with regard to traffic survey/sampling arises but no such remedy was availed and without availing the specific remedy of arbitration, not only the contract has been terminated, but the FIR has also been lodged. As per the petitioner, there is a delay of two years in lodging the FIR.
11. The petitioner has averred that the concessionaire as of date is not even a legal entity against whom FIR is lodged. The concessionaire went into liquidation vide order dated 18.09.2019 of the National Company Law Tribunal. The allegations made in the FIR are completely incorrect because there was no foundation to substantiate the same. According to the petitioner, the siphoning of toll is baseless and the same is evident from the methodology opted for collection. The daily collection of toll tax was picked up by the banks themselves through CMS services. In the FIR also no specific role of the petitioner has been disclosed. As per the petitioner when specific remedies are available in a dispute arises then lodging of an FIR under Section 409 of IPC and initiation of criminal prosecution is not permissible. The offence of Section 409 of IPC is made out only when a public servant, banker or merchant or agent commits any criminal breach of trust in his capacity of a public servant or in the way of business in respect of the property entrusted to them. According to the petitioner, he is neither a public servant, banker, merchant or agent nor entrusted with anyone's property which they could have misappropriated. At no point of time, according to the petitioner he was personally entrusted with any sort of public property 8 and as such, he has not siphoned the amount and has no role to play in the matter. Nothing has been collected by the prosecution to show that even a single transaction of any of the alleged siphoned money deposited in some other banks of either the concessionaire or the present petitioner's account.
12. Although the respondent no.2 has not very specifically opposed the said submission and even silent in that regard in the reply submitted by them but they have stated that the traffic sampling got done as per Clause 22.3 of the agreement and observed that the total collection should be Rs.10.55 lacs but a very less amount has been deposited by the concessionaire in the escrow account and as per the termination notice, the total premium that is due from the petitioner is Rs.93,03,82,563/-. The respondent submits that there are clauses in the agreement in which it is clearly stated that the amount collected by the concessionaire from the users of the project highway has to be deposited in the escrow account but that has not been done, therefore, it is a breach of contract and as such fraud is committed by the petitioner and nothing wrong has been done by the respondent in lodging the FIR.
13. Both the parties have relied upon various judgements to strengthen their stand.
14. Counsel for the petitioner submits that the FIR can be quashed in view of the law laid down by the Supreme Court in case of State of Haryana and Others Vs. Bhajanlal and Others 1992 Supp (1) SCC 335, Binod Kumar and others Vs. State of Bihar and Another (2014)10 SCC 663, M. Suresh and others Vs. State of Andhra Pradesh and another (2018)15 SCC 273.
15. Learned counsel for the respondents has placed reliance upon the 9 judgments passed in case of Anwar Chand sab Nanadikar Vs. State of Karnataka 2003(10) SCC 521, Hridaya Ranjan Prasad Verma Vs. State of Bihar and another 2000(4) SCC 168, Vijay Kumar Ghai and others Vs. State of West Bengal and others 2022(7) SCC 124 and also in case of State of Haryana and Others Vs. Bhajanlal and Others 1992 Supp (1) SCC 335.
16. I have heard the rival contention of the parties and also perused the record.
17. As per counsel for the petitioner, it is a dispute arising out of the contract and the same is purely of civil nature. The contract was terminated on 04.04.2018 whereas the FIR got lodged on 09.07.2020 and as such, the FIR is liable to be quashed on the ground of delay and also on the ground that it is nothing but an afterthought. As per the counsel, the sole foundation of lodging the FIR is the traffic survey/sampling but that itself is illegal because if that was so required to be done, it had to be done as per clause 22.3 that too in the presence of both the parties but that was not done. Even the amount deposited with the bank was asked to be released in favour of the petitioner but the respondents refused to do so and asked them to go for arbitration. As such, it is clear that it is a case in which appropriate remedy is available if any dispute arises but lodging the criminal prosecution is illegal because the same is a malicious prosecution that too without any foundation and, therefore, it requires to be quashed.
18. As per counsel for the respondent No.2, the traffic survey/sampling was conducted in the year 2019 because it had been done by a person expert in the field and the expected amount ought to had been deposited based upon the specific datas collected by the agencies conducted the survey and as such, fraud was played by the 10 petitioner by not depositing the total amount collected with the Bank which had given the loan for completing the contract and, therefore, FIR has rightly been lodged and offence under Section 409 of IPC has rightly been registered against the petitioner.
19. Considering the rival contentions of counsel for the parties and on perusal of record, I am of the opinion that dispute in question arising out of a contract and in the said contract there is a specific remedy available i.e. Arbitration if any dispute arises. Indisputably, the contract was terminated on 04.04.2018 and the FIR was lodged on 09.07.2020 and no explanation was given as to why even before terminating the contract or immediately after terminating the contract, FIR could not be lodged. It is also not clear as to what role has been played by the petitioner and there is no material produced by the respondents to indicate that there was any transaction took place to show that the amount collected from the users has not been deposited in the escrow account.
20. It is also something surprising that when agreement itself contained a clause for conducting a joint traffic survey/sampling as to why it was not done and only on the basis of one sided report, allegations made against the petitioner. From perusal of FIR, it is clear that the police registered the offence only because there was an opinion of the Advocate General and it clearly reveals that police neither examine the fact that the dispute is of civil nature and the allegations made against the petitioner are having no foundation nor any incriminating material collected and produced by the complainant before the police so as to initiate criminal proceeding against the petitioner. In case of Bhajanlal (supra) the Supreme Court has categorized the circumstances under which if offence is registered, it can 11 be quashed. Paragraph 102 of the said judgment has given the categories which are as under:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation 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. (3) 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.
X X X (5) 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."
(emphasize supplied)
21. In view of the aforesaid enunciation of law and the contents of FIR, it is clear that offence of 409 of IPC is not made out against the petitioner because no specific allegation has been made against him that any amount which he collected from the users of the road through toll 12 has not been deposited by him in the escrow account. It is only an apprehension and on the basis of some survey, which cannot be given any legal sanctity, because it was a one sided survey whereas it was required to be conducted in presence of both the parties as per clause 22.3 of the Agreement. The prosecution has not collected any incriminating material and produced so as to establish that the allegations made in the FIR constitute an offence and disclose commission of such crime by the petitioner.
22. During the course of arguments it was informed that though the FIR was lodged on 09.07.2020 but still charge-sheet has not been filed. From the contents of the FIR, it is clear that the police registered the offence only on the basis of opinion given by Advocate General. On perusal of clauses of the judgment of Bhajanlal (supra), especially Clause-5, this Court is of the view that lodging of FIR and registration of offence under Section 409 of IPC that too on the basis of contents of FIR is nothing but an absurd proposition on the basis of which petitioner was made an accused.
23. In the case of Binod Kumar (supra), the Supreme Court has observed as under:-
"17. Section 420 IPC deals with cheating. The essential ingredients of Section 420 IPC are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens rea of the accused at the time of making the inducement.
18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that 13 the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.
19. Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a shortcut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed."
In view of the above, it is clear that there is nothing available on record and even in the FIR it is not alleged that it is the petitioner who has breached the contract and misappropriated the amount collected through the users towards toll. Nothing specific is made by the complainant.
24. The Supreme Court in case of M. Suresh (supra) has also observed as under:-
"9. We have perused the record and heard the learned counsel for the State and the learned counsel for the complainant. It is patent that the dispute between the parties is purely of civil nature. Transaction of sale of the land was not finalised between the parties. As against the payment of Rs 85 lakhs by the complainant, A-1 has returned a sum of Rs 95 lakhs which has not been disputed by the complainant. In the counter-affidavit, it has been further stated that the complainant has executed a deed of cancellation of the agreement dated 9-10-2006 under which the accused was to pay a sum of Rs 1.25 crores upon which the complainant was to withdraw the complaint. But, the two cheques of Rs 15 lakhs each have been dishonoured and thus, a case for cheating has been made out.
10. We find from the documents on record, particularly the counter- affidavit of the respondent himself and the cancellation deed dated 9- 10-2006 filed along with the counter-affidavit that the dispute between the parties is purely of civil nature. Even the stand of the complainant is that the matter has already been resolved and the complainant has already received the amount of Rs 95 lakhs against the payment of Rs 85 lakhs. However, according to him, the appellants were liable to pay 14 further sum of Rs 30 lakhs as the cheques for the said amount have been dishonoured. Mere fact that the cheques have been dishonoured and the appellants may be liable to pay further amount to the complainant will not by itself make out a case of cheating. It is a dispute for which the respondent complainant can take his remedies under the law. We are conscious that merely because a case involves a civil dispute does not by itself bar remedy under criminal law if a case is made out. At the same time, process of criminal law cannot be pressed into service merely for settling a civil dispute when no offence is committed. Law on the point is well settled in a series of judgments of this Court including Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 :
2000 SCC (Cri) 786] , Anil Mahajan v. Bhor Industries Ltd. [Anil Mahajan v. Bhor Industries Ltd., (2005) 10 SCC 228 : (2006) 1 SCC (Cri) 746] , Indian Oil Corpn. v. NEPC India Ltd. [Indian Oil Corpn. v.
NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , Inder Mohan Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] and Chandran Ratnaswami v. K.C. Palanisamy [Chandran Ratnaswami v. K.C. Palanisamy, (2013) 6 SCC 740 : (2014) 1 SCC (Cri) 447].
11. We are satisfied that in the present case the criminal complaint filed by Respondent 2 is abuse of process of law and cannot be sustained.
12. Accordingly, while allowing these appeals we quash the impugned complaint and proceedings against the appellants in the said criminal case. This will, however, be without prejudice to any other remedies of Respondent 2 under the law."
25. Thus, in view of the above, it is clear that the aforesaid dispute can be considered to be of civil nature because the same is arising out of a contract for which there is remedy available and as such the FIR has wrongly been lodged against the petitioner against whom nothing specific is alleged to constitute an offence under Section 409 of IPC. It is apt to see the ingredients of Section 409 which is as under:-
"409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
26. From perusal of the aforesaid provision it is clear that if a person 15 is made an accused under Section 409 of IPC or allegation of criminal breach of trust is made against him, his specific role should be assigned and any transaction made by him, which comes within the criminal breach of trust, has to be there but here in the present no such ingredients are available to constitute an offence under Section 409 of IPC.
27. Recently, this Court in case of Abhishek Tiwari Vs. State of Madhya Pradesh and Others (W.P. No. 4349 of 2023 decided vide order dated 03.10.2023) relying upon Supreme Court decision rendered in the cases of Sarabjit Kaur Vs. State of Punjab and another reported in (2023) 5 SCC 360 and Kapil Agarwal and others Vs. Sanjay Sharma and others reported in (2021) 5 SCC 524 has quashed the FIR and all subsequent proceedings which have arisen out of the contract executed between the parties as the dispute was purely of civil nature. The case laws on which counsel for the respondents has placed reliance with regard to power of the High Court to interference in a criminal case or to quash the proceedings are not applicable in the facts and circumstances of the present case. It is a case in which there is no specific allegation and material available before this Court to indicate that it is the petitioner who has committed criminal breach of trust and used any amount for his personal use instead of depositing the same in the escrow account. The contract is a written contract containing conditions and if any condition is violated then remedy is available. It is a settled principle of law that a dispute purely of civil nature cannot be converted into criminal prosecution and cannot be used as a tool to create pressure upon a party to settle the dispute. In the present case, contract was terminated in the year 2018 and FIR was lodged only on the basis of opinion of the Advocate General that too after almost two 16 years and even after lodging of FIR till now, no charge-sheet has been filed.
28. Thus, under such a circumstance, the petitioner cannot be permitted to continue to face such criminal prosecution which is purely abuse of process of law and otherwise liable to be quashed. Therefore, FIR No. 294/2020 dated 09.07.2020 registered at Police Station Misrod, District Bhopal, is hereby quashed and further proceedings based thereon are also quashed.
29. The petitions are accordingly allowed. No order as to cost.
(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO Date: 2023.11.29 18:24:19 +05'30'