Punjab-Haryana High Court
S.P.S.Saini And Others vs The State Of Punjab And Another on 13 February, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. NO.8856 OF 2013 &
CRIMINAL MISC. M NO.24295 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: FEBRUARY 13, 2013
S.P.S.Saini and others
.....Petitioners
VERSUS
The State of Punjab and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. R. S. Rai, Sr.Advocate with
Mr. Gautam Dutt, Advocate,
for the petitioners.
Mr. Kirat Singh Sidhu, AAG, Punjab,
for the State.
Mr. R. S. Cheema, Sr. Advocate with
Mr. Arshdeep Singh Cheema, Advocate,
for respondent No.2.
*****
RANJIT SINGH, J.
S.P.Saini, General Manager, H.S.Langotia, Commercial Officer and Vishwas Saini, Project Manager of M/s Dhoot Developers Limited, Gurgaon have filed this petition for quashing the FIR No.126, dated 28.7.2012, registered under Sections 420, 120-B and 380 IPC at Police Station Ferozepur Cantt. They would also pray for quashing all the subsequent proceedings as no cognizable offence is made out CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 2 }:
from the allegations and as per them, this FIR is an abuse of the process of law.
This FIR is registered on the basis of a complaint made by H.S.Sodhi, Proprietor, Fortune Rider, CHR Group, Prestige Chamber, Jalandhar. The complaint filed is concerning the mishandling of the material lying at the site of construction at Ferozepur Cantt. As per the complainant, material worth 1.5-2 crores was lying at the site, which was being mishandled by Dhoot Developments through its employees i.e. the three petitioners and others. The complainants were threatened not to enter the site due to which it had filed a writ against Dhoot Developers in Delhi High Court on 16.11.2011 (as per the record, it is not a writ petition, which is filed but an application under Section 9 of the Arbitration and Conciliation Act). The High Court has permitted the complainant to pick up material after notification to Dhoot Developers' employees. The complainant accordingly has approached the site 2-3 times but the petitioners did not permit them to pick up the material, which was also found missing from the site. The list of the material attached was presented before the Delhi High Court. Accordingly, the complainant has requested the police to take appropriate action against the people who were stealing the material from the site and keeping the forcible possession of the material in violation of the orders passed by the High Court of Delhi.
The petitioners would plead that no cognizable offence is disclosed from the complaint. As per them, the dispute, if any, is of CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 3 }:
civil in nature, for which arbitration proceedings are already pending. Justice S.K.Katriar, Former Judge of Patna High Court, is the sole Arbitrator conducting the proceedings.
The petitioners state that they are serving with M/s Dhoot Developers and have not committed any offence whatsoever. It is stated that the story as projected regarding stealing of material or violation of the orders passed by Delhi High Court is false and fabricated. The FIR is stated to be result of consultation and deliberations to put pressure on the petitioners.
The grievance of the petitioners is that the Investigating Officer has made out entirely new case, which is not even projected in the complaint. Otherwise, the background in which this allegations are made, as disclosed in the petition, are that M/s Dhoot Developers is a Company engaged in the construction business. It was awarded a job of value of `210 crores for construction of residential accommodation for Army at Ferozepur. H.S.Sodhi, the complainant, had contacted the head office of the Company at Delhi. Based on his representation, petitioner-Dhoot Developers and M/s Fortune Riders agreed to enter into a contract. Respondent No.2 had submitted an offer for portion of the job and tendered his rates. M/s Dhoot Developers issued letter of intent on 22.12.2010 for the total value of `20.52 crores, which was accepted by M/s Fortune Riders. They entered into a contract on 5.1.2011. M/s Fortune Riders brought in some material to carry out the work. M/s Dhoot Developers released mobilization advance of `1.47 crores to M/s Fortune Riders, who CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 4 }:
were required to submit a bank guarantee as a performance guarantee for successful performance of the contract. The complainant could not provide this guarantee and instead opted for PDC for the same amount, which was accepted by M/s Dhoot Developers as a gesture of trust.
The petitioners would allege that while the work was in progress, the complainant did not raise the monthly running account bills on regular basis but started demanding advances termed as adhoc advance. This way the adhoc advance stood at `2.27 crores. When the complainant again approached for another advance in May 2011, it was made clear that enough money had been advanced to them whereas the work done was much less. M/s Fortune Riders at that stage stopped the work at site. M/s Dhoot Developers then held a meeting on 9.8.2011 with the complainant but still, the complainant did not stand by his promise to start the work. Instead, the complainant started asking M/s Dhoot Developers for permission/approval from the Director General of Married Accommodation (DGMA), though it was not required nor was agreed at any stage. The complainants are alleged to have twisted the clauses in the main agreement and pressurized M/s Dhoot Developers to enter into a contract with them, which is illegal and void. This is done after taking advance of approximately `4 crores. When M/s Dhoot Developers did not succumbed to illegal demand of more advance, the complainant made a false complaint to S.P., Ferozepur, on 8.9.2011, stating that payment in crores of rupees was CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 5 }:
due for work done and their hired material worth crores of rupees was lying at the site.
The complainant also entered into a dispute with M/s A.P.Industries, whom the complainant had appointed for providing material for construction of building, including scaffolding and shuttering. M/s A.P.Industries also filed a civil suit that it being a owner of scaffolding and shuttering material, so M/s Dhoot Developers be restrained from obstructing M/s A.P.Industries from lifting the aforesaid material given to the complainant on hire and rent basis. Civil Judge (Senior Division), Dera Bassi, has passed an exparte interim injunction in favour of M/s A.P.Industries, restraining the complainant and others from obstructing M/s A.P.Industries from lifting the material from the site, which was supplied to the complainant on rent. A letter was written by the complainant to petitioner No.1 to ensure compliance of the orders passed by the Civil Court and for this purpose, the complainant had authorized Sh.Sukhdev Singh to go to the site and return the rented shuttering material. The complainant had also expressed apprehension that certain vested interests have been working against the Court order and even some personnel from the Army were contemplating to thwart the compliance of the order. It is stated that the materials were loaded in the truck and handed over to M/s A.P.Industries. This complaint was also enquired into by S.P., Jalandhar, and no cognizable offence was found to have been made out.
It is then that the complainant has invoked the arbitration CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 6 }:
clause contained in the agreement and initiated arbitration proceedings. Application under Section 9 of the Arbitration and Conciliation Act was filed before High Court of Delhi, where prayer was made for restraining M/s Dhoot Developers from awarding sub- contract in favour of third party and for allowing the complainant to remove his equipments and material lying at the work site. M/s Dhoot Developers appeared before the Court and raised no objection before the Court for lifting the material, as was prayed for. The Court accordingly permitted the complainant to remove its equipments and material lying at the work site.
While the investigation was in progress in an FIR No.129, dated 1.12.2011, the complainant lodged another complaint with SSP on 9.5.2012. It is alleged that SSP, Ferozepur, had ignored the complaint made in FIR No.129 and accordingly prayed for action against M/s Dhoot Developers. Superintendent of Police, Crime Branch, Ludhiana, enquired into the matter, who found that the issue was regarding payment of money and no more or no less, for which both the parties have sought arbitration. Accordingly, the dispute was found to be of civil nature. Copy of this report is annexed with the petition as Annexure P-9. Arbitration is now in progress, when the present allegations are made stating that despite orders the complainants have not been permitted to pick up the material. Allegation is that the articles have gone missing from the site.
It is alleged that during the course of investigation, SHO Dalbir Singh has made out entirely new case and held that prima-
CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 7 }:
facie commission of offences under Sections 420, 120-B, 380 IPC are disclosed. The petitioners accordingly have prayed for quashing of this FIR.
From the facts, as noticed above, the petitioners have initially approached for quashing the FIR, which statedly was registered under Sections 420, 120-B and 380 IPC. Application today has been filed for placing on record the certified copies of documents, Annexures P-12 and P-13. Prayer is to place these documents on record as part and parcel of the main petition and for allowing necessary modification so as to quash FIR No.126, dated 28.7.2012, which is also under Sections 465, 467, 468, 471 IPC.
Mr.R.S.Cheema, learned senior counsel appearing for the complainant, would implicate motive to the petitioners for approaching this Court by withholding information and even by not disclosing that FIR registered against the petitioners was also under Sections 465, 467, 468, 471 IPC. It is not that these offences have been subsequently added but these were already there in the FIR, as is now indicated from documents, Annexure P-12 and P-13.
Counsel in this regard would submit that this action has now been taken only on seeing the reply filed by the complainant- respondent, making allegations against them for deliberate concealment. In fact, the preliminary submissions made in the written statement would show that respondent No.2 herein has accused the petitioners of imbedding the petition with deliberate concealment. It is pointed out that the DSP submitted the enquiry report for obtaining CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 8 }:
legal opinion from DA and only then the present FIR was registered. Respondent-complainant had appeared before the Investigating Officer and submitted the copy of the agreement between the complainant and M/s Dhoot Developers Pvt. Ltd., indicating that the Director had forged the agreement, whereby they appointed the answering respondent as sub-contractor. They had not been authorized by the Army to do so. After perusal of the same, offences under Sections 465, 467, 468, 471 IPC were added. A copy of the DDR reflected the same and was placed on record with the reply. On this basis, it is alleged that the petitioners were well aware of this fact, when they applied for anticipatory bail on 8.8.2012. They had pleaded the same and supplementary bail application was filed, praying for grant of anticipatory bail in the above-noted Sections also. Copies of the supplementary bail applications are also annexed with the reply. It is only after hearing the arguments in detail, the anticipatory bail application was allowed. From this, the complainant would allege that the petitioners were well aware of the fact that offences under Sections 465, 467, 468,471 IPC had been added and they can not plead any ignorance in this regard. The present petition, which is filed much after the said order, thus, was concededly filed by deliberately and willfully concealing these facts from this Court. On this basis, respondent No.2 would urge that the petitioners ought to be denied relief on this ground of making the present approach falsely and concealing the facts. The support is sought from the view expressed in MCD Vs. State of Delhi and another, 2005 Supreme CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 9 }:
Court Cases (Criminal) 1322. As is held in this case, person whose case is based on falsehood and approaches the Court with unclean hands, withholding the vital documents in order to gain advantage, would be guilty of playing fraud on the Court and on the opposite side. It is held that a person whose case is based on falsehood has no right to approach the Court and he can be summarily thrown out at any stage of litigation.
Respondent No.2 has further disclosed that sub-contract of building residential accommodation at Ferozepur was granted by Ministry of Defence to Sneh Developers on 16.12.2010. Respondent No.2 started working at the site from 22.12.2010. It is thereafter that M/s Dhoot Developers approached respondent No.2 directly and asked them to work for them and to sign an agreement eliminating Sneh Developers. Respondent No.2 agreed to the proposal and signed an agreement on 5.1.2011. M/s Dhoot Developers was satisfied with the services of respondent No.2 and increased the scope of work for another 41 blocks on 14.1.2011. Thereafter, more work for 72 blocks was allotted on 28.3.2011. Payments were released to respondent No.2 every month. As per them, they have not availed any mobilization advance in terms of clause 13 of the Agreement. In this manner, the work by respondent No.2 was at full swing and material worth crores of rupees was placed at the site. Daily work was under the surveillance of Lt.Col. Manoj Rawat and Col.Daljit Singh.
In June 2010, Harminder Singh, an employees of M/s CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 10 }:
Dhoot Developers, asked the answering respondent to use his material at midnight. He allegedly took revolver and pointed towards respondent No.2 and his employee, when Army officials came on the site and took him in custody alongwith his weapon. This complete issue was in the notice of M/s Dhoot Developers. Next day, President, M/s Dhoot Developers, came to respondent No.2 and felt sorry, when the matter was compromised. Said employee, Harminder Singh, was released from the Army custody. In the month of July, petitioner No.1 was appointed as General Manager, who had a fight with one of the Engineers of the Company, who was injured as well. FIR was accordingly registered and 8-9 Engineers were got terminated from the services of M/s Dhoot Developers. It is then that respondent No.2 became suspicious and conducted his own enquiry, when petitioner No.1 told him that no payment would be released until the work was done in accordance with his wishes. This was simply a blackmail tactics. He also apprised respondent No.2 that he will not be allowed to pick up material from the site until he works as per his will and wishes.
On 4.8.2011, respondent No.2 received an E-mail to increase the resources at site, which was a matter of suspicion for him, as the work was already in full swing. The petitioners also sent an E-mail, seeking permission to enable them to appoint sub- contractors, which they claimed to be authorized to do. The copy of the agreement, showing authorization, however, had not been supplied to respondent No.2 despite repeated requests. When the CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 11 }:
payments were not released, respondent No.2 allegedly contacted the officials of the company and asked them to release the same. Respondent No.2 was apprised that the payment would be made when the same was received from the Army. Respondent No.2 then approached the Army officials in terms of Clause 57 of their agreement, when he learnt that payments were regularly being released to M/s Dhoot Developers. The Army officials also apprised respondent No.2 that they should talk to M/s Dhoot Developers, as they were not their sub-contractors. This led to a suspicion in the mind of respondent No.2 to the effect that M/s Dhoot Developers was getting the work done without approval from the competent authority. Respondent No.2 then approached the Director General, Married Accommodation, by filing a RTI application on 24.8.2011, for providing copy of approval or permission to M/s Dhoot Developers to appoint sub-contractors. Respondent No.2 even approached the Director General to intervene to get the payment released to him. Respondent No.2 then met petitioner No.1 also, who told him to withdraw RTI application and even threatened him that he would undergo losses in crores of rupees and he would not allow him to pick up his material from the site. Thereafter the suspicion of the answering respondent grew deeper and he started sending number of letters, requesting them to provide copy of approval, which enabled them to appoint sub-contractors. M/s Dhoot Developers kept on threatening the answering respondent, for which he filed a complaint on 9.8.2011 with S.S.P., Ferozepur. Answering respondent CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 12 }:
was further harassed through various e-mails and phone calls.
Faced with the above situation, the answering respondent stopped the work at site. M/s A.P.Industries, from whom the shuttering material was taken on rent, started demanding the return of said material and filed a suit, as already noticed. Answering respondent made a statement before the Court, permitting M/s A.P.Industries to pick up their material. Petitioner No.1, with malafide intention, did not allow the officials of M/s A.P.Industries to pick up the material from the site. The interim directions accordingly were passed. In the meantime, answering respondent also received a reply to the RTI application, stating that no permission was granted to M/s Dhoot Developers to appoint sub-contractors. On 23.9.2011, answering respondent No.2 contacted the Army officials and made enquiry about the contract. The Army officials on seeing the agreement between M/s Dhoot Developers and the answering respondent observed that the said agreement was in violation of the agreement between M/s Dhoot Developers and the Army. This agreement for sub-contract was statedly without any authorization and the signatures of the Army officials on this agreement were allegedly forged. Army officials maintained that this agreement was not to their knowledge. This came as a shock to respondent No.2. At that stage, payment of `5.07 crores was due towards M/s Dhoot Developers, for which necessary bills had already been submitted. The Army authorities were accordingly requested to retain the payment of M/s Dhoot Developers, till they cleared the payment of CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 13 }:
the answering respondent. D.G.M.A.P., then wrote a letter to M/s Dhoot Developers to immediately terminated the sub contract which was in violation of the terms of their agreement. In fact, there was a clause in the agreement that the contractor was not allowed to sublet the tender granted to him and the contract was liable to be cancelled, if such an act was attempted. This is as per Clause 47 of the agreement. Even the Company was to be black listed on this count. D.G.M.A.P., however, did not act on this clause of the agreement, in connivance with M/s Dhoot Developers but terminated the contract between the answering respondent and M/s Dhoot Developers. This was done on the false allegation. Answering respondent was then forced to make various complaints to police authorities to take action against M/s Dhoot Developers. In retaliation, petitioner No.1 got registered an FIR against respondent No.2 and after enquiry, cancellation report was submitted. Finding is that there was no cheating committed by respondent No.2.
On perusal of the reply received to RTI application, respondent No.2 could notice that M/s Dhoot Developers had scanned the entire agreement, which was made between them and D.G.M.A.P. They have pasted the signatures of the Army officials on the agreement between the answering respondent and M/s Dhoot Developers. Photo copy of the relevant pages in this regard are annexed with the reply. When the answering respondent went to the site, he found that locks of the stores and office were broken and most of the material was missing from the site. Some material was CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 14 }:
used by the officials of M/s Dhoot Developers. The employees of respondent No.2 clicked photographs and these were submitted before the Enquiry Officer. Even the employees were threatened by the employees of M/s Dhoot Developers, for which the complaint was made. The SHO also had allegedly witnessed a truck, which was loaded with material belonging to the answering respondent, when he had gone to the site on the basis of photographs submitted by the answering respondent. This was recovered and taken in custody. It is alleged that the material worth more than `one crore of the answering respondent is missing alongwith material rented from Jindev Shuttering valued at `28 lacs and that of M/s A.P.Industries valued at `30 lacs. Accordingly, it is alleged that there are direct and clear allegations against the petitioners and the prayer for quashing the FIR and subsequent proceedings is neither made out from the record nor the petitioners would deserve any consideration because of mis-statement of facts and for misleading the Court, by which they have obtained an interim order even, staying the proceedings.
I have heard the counsel appearing for the parties. The counsel for the petitioners mainly would contend that no criminal offence is made out from the allegations made in the FIR and at the most dispute is of a civil nature, which can very well be resolved, when both the parties have already approached the Arbitrator. Entire petition has been framed by keeping the offences under Sections 420, 120-B and 380 IPC. It is alleged that the allegations in the FIR would not disclose any offence of cheating or CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 15 }:
of theft etc. Reference is also made to some earlier complaints, where enquiries were conducted and it was held that the dispute is of a civil nature. Learned counsel for the petitioners would also submit that opposing the High Court order would not reveal any offence and at the most, the answering respondent-complainant can approach the Court in case he is alleging violation of the order passed by the High Court of Delhi. It is accordingly urged that registration of an FIR is an abuse of the process of law, when M/s A.P.Industries had taken all the material back from the site.
I have considered the submissions so made.
Firstly, the petitioners have not been able to seriously counter the allegations made by respondent No.2 that the petitioners have made a serious attempt to provide a misleading information. The FIR registered against the petitioners is not only for offences under Sections 420, 120-B and 380 IPC but also contained offences under Sections 465, 467, 468, 471 IPC. There is no averment made in the petition that offences under Sections 465, 467, 468, 471 IPC are not made out from the allegations as have surfaced during the investigation. FIR contains allegations and investigation can reveal some more allegations. The reference to the reply filed by the answering respondent would show the over all allegation of cheating, which prima-facie may be made out from the course of investigation in this case. If the petitioners were not entitled to enter into a sub- contract and did so by misleading answering respondent No.2 and in that process forged the signatures of Army officials, then it would CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 16 }:
definitely be a very serious matter and may reveal the culpability of the petitioners for offences under Sections 465, 467, 468, 471 IPC. Not only that, as per answering respondent, the SHO had intercepted a truck loaded with material, which was being lifted from the site. Prima-facie, the material at the site belonged to respondent No.2 or it had been hired by him. If attempt was being made to pilfer the material from the site in this manner, it may disclose an offence under Section 380 IPC. The detailed reference has been made to the facts and it would be for the trial Court to see whether the petitioners had any intention to cheat, when they entered into this sub-contract with answering respondent No.2 and whether any payment had been withheld with dishonest intention or not. All these aspects are matter of investigation. These issues can not be gone into and determined on the basis of affidavit annexed with petition under Section 482 Cr.P.C. Unfortunately, in this case, even investigation has been stayed while passing the stay of further proceedings. Investigation ultimately would show if the offences alleged against the petitioners are made out or not. The allegations being what these are as noticed above can possibly not be adjudicated while exercising inherent jurisdiction under Section 482 Cr.P.C.
As has been observed in State of Madhya Pradesh Vs. Awadh Kishore Gupta and others, 2004(1) R.C.R. (Criminal) 233, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its CRIMINAL MISC. NO.8856 OF 2013 & CRIMINAL MISC. M NO.24295 OF 2012 :{ 17 }:
decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. The Court has further held that it would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.
I have not been able to convinced myself that this is a case where any cause is made out to quash the FIR on the grounds as urged in the petition. This case would require investigation and all these pleas have to be ultimately raised either before the investigating agencies or, if need be, before the trial Court. No case for quashing the FIR under Section 482 Cr.P.C. Is made out.
The petition is accordingly dismissed.
February 13, 2013 (RANJIT SINGH ) khurmi JUDGE