Punjab-Haryana High Court
Varun Kumar vs State Of Punjab & Anr on 5 March, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM Nos.M-43999 & 51199 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Criminal Misc. No.M-43999 of 2007
Varun Kumar ....Petitioner
Versus
State of Punjab & Anr. ...Respondents
2. Criminal Misc. No.M-51199 of 2007
Malook Singh ....Petitioner
Versus
State of Punjab & Anr. ...Respondents
Date of Decision:- 5.3.2012
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Vikram K.Chaudhari, Advocate for the petitioners.
Mr.C.S.Brar, D.A.G. Punjab for respondent No.1.
Mr.Karan Gupta, Advocate for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
Petitioner Varun Kumar, proprietor of M/s Anand Enterprises, has directed the instant petition, vide CRM No.M-43999 of 2007 (for brevity "1st case"), for quashing the FIR, bearing No.42 dated 1.4.2004 (Annexure P4), final police report under Section 173 Cr.PC (Annexure P5) & charge sheet (Annexure P7), whereas, petitioner Malook Singh son of Ajit Singh, Rice Sheller, has filed CRM No.M-51199 of 2007 (for short "2nd case"), to challenge the FIR, bearing No.343 dated 5.9.2001 (Annexure P1), final police report under Section 173 Cr.PC (Annexure P2) & charge sheet (Annexure P4). Since the identical questions of law and facts are involved, so, I propose to dispose of both the indicated petitions, CRM Nos.M-43999 & 51199 of 2007 -2- by virtue of this common judgment, in order to avoid the repetition. However, the facts, extracted from CRM No.M-43999 of 2007 titled as "Varun Kumar Vs. State of Punjab & Anr." (1st case), have been mentioned in the subsequent part of this judgment, for ready reference in this context.
2. The epitome of the facts and material, culminating in the commencement, relevant for disposal of the instant petitions and oozing out from the record, is that the Punjab Food & Civil Supplies Department has entrusted 38345 bags, weighing 19172.50 quintals of A grade paddy to M/s Anand Enterprises, Jalalabad Road, Muktsar. Similarly, total 114091 bags, weighing 73824.60 quintals of A grade paddy were supplied to Malook Singh for custom and milling. The firms acknowledged its receipt. An agreement (Annexure P1) was also executed with the petitioner-firms in this regard. After milling of the paddy, the rice was required to be delivered by them to the FCI on behalf of Punjab Government till 28.2.2002. The period of its delivery was subsequently extended upto 29.12.2002 by the Government. The petitioner-firm only delivered 5118.56 quintals of rice to the FCI on behalf of the Food & Supplies Department and misappropriated the remaining paddy/rice in this relevant connection.
3. In this manner, the prosecution claimed that the petitioners-accused have misappropriated the paddy entrusted to them. They did not return the A grade paddy and supplied a very less quantity (weight) of rice of inferior quality. Thus, they have committed the criminal breach of trust, cheated and caused a huge monetary loss to the Food & Civil Supplies Department and converted it for their own illegal gains. On the basis of aforesaid allegations, the criminal cases were registered against the petitioners-accused and similarly situated firms on accusation of having committed the offences punishable under Sections 406 & 408 IPC etc. by the police of Police Station City Muktsar. After the completion of investigation, the police submitted the final police reports/challans (Annexure P5) CRM Nos.M-43999 & 51199 of 2007 -3- (in 1st case) and Annexure P2 (in 2nd case).
4. Taking cognizance of the final police report, the Chief Judicial Magistrate charge sheeted the petitioner-accused for the commission of offence punishable under Section 406 IPC, by means of impugned order dated 17.11.2004 (Annexure P7) (in 1st case), which, in substance, is as under:-
"That in the year 2001-2002, you being Prop. of Anand Enterprises were entrusted paddy belonging to Food & Supply Department, for milling weighing 11645.50 quantal, amounting to Rs.88,00,000/- which you converted to your own use and thereby committed an offence punishable u/s 406 IPC, which is within the cognizance of this Court."
5. Thereafter, the petitioner-accused moved an application for adjourning the proceedings sine die, which was dismissed by the CJM, by way of impugned order dated 9.10.2006 (Annexure P8). The revision petition filed by him was also dismissed, being not maintainable by the Additional Sessions Judge, through the medium of order dated 12.4.2007 (Annexure P9). Similar charge was framed against the accused in 2nd case, vide order dated 13.12.2002 (Annexure P4).
6. The petitioners-accused still did not feel satisfied with the initiation of criminal prosecutions and preferred the present petitions, challenging the impugned FIRs, final police reports and orders framing the charges against them, invoking the provisions of Section 482 Cr.PC.
7. The case set up by the petitioners, in brief in so far as relevant, was that the Food & Civil Supplies Department is competent to recover the amount of misappropriated paddy as per the terms and conditions of the agreement (Annexure P1) and since there is an arbitration clause to settle the dispute in the agreement, so, the initiation of criminal prosecutions against them are gross abuse of process of law. According to the petitioners that the criminal proceedings are liable to be quashed, in view of orders (Annexures P10 to P12) of this Court. In CRM Nos.M-43999 & 51199 of 2007 -4- this manner, the petitioners pleaded that no offence whatsoever is made out against them. On the strength of aforesaid grounds, they prayed that the FIRs, challans and charge sheets be quashed in the manner described hereinabove.
8. The respondents refuted the prayer of the petitioners and filed their respective replies, in which, it was mentioned that they (petitioners) misappropriated the paddy, which was allotted to them. They did not deliver the rice after shelling the paddy and caused huge loss to the Food & Civil Supplies Department. Instead of reproducing the entire contents of the replies and in order to avoid the repetition, suffice it to say that the respondents have reiterated the allegations contained in the impugned FIRs. However, it will not be out of place to mention here that they have stoutly denied all other allegations contained in the main petitions and prayed for their dismissal.
9. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant petitions in this respect.
10. Ex-facie the argument of learned counsel that there is an arbitration clause in the agreement and as the department has an alternative remedy of recovering the amount of misappropriated paddy, therefore, the Courts below have illegally framed the charges against the petitioners-accused, is neither tenable nor the observations of this Court in the orders (Annexures P10 to P12) are at all applicable to the facts of this case. At the very outset, it is not a matter of dispute that all the similar points raised in the present petitions, have already been duly considered and negate by this Court in case Mohinder Singh v. The State of Punjab & Anr. CRM No.M-44541 of 2007, decided on 16.2.2012.
11. Faced with the grave situation, the learned counsel for the petitioners then urged that since there is an apparent conflict in the orders of this court (Annexures P10 to P12), wherein the criminal prosecutions have been quashed and CRM Nos.M-43999 & 51199 of 2007 -5- the judgments (Annexures P13, P14 & P16), where the petitions for quashing such criminal prosecutions were dismissed, so, the matter be referred to a larger Bench to settle the controversy. This contention is not only devoid of merit but misplaced as well. The pointed question, as to whether such criminal prosecutions are maintainable or not, even if there is an arbitration clause in the agreement, is now well settled.
12. An identical question came to be decided by Hon'ble Apex Court in case Trisuns Chemical Industry v. Rajesh Agarwal and Ors. 1999(8) SCC 686. Having interpreted the relevant provisions, it was held that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude the Court of its criminal outfit. It was further ruled in para 9 as under:-
"9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal".
13. Not only that, the same view was reiterated by Hon'ble Supreme Court in cases Gurcharan Singh & Anr. v. M/s Allied Motors Ltd. & Anr. 2005(10) SCC 626; State of Punjab v. Pritam Chand and Ors. 2009(16) SCC 769 and by this Court in case Pawan Kumar v. State of Haryana 2006(2) RCR (Criminal)
162. CRM Nos.M-43999 & 51199 of 2007 -6-
14. Moreover, a similar point was decided by the Hon'ble Apex Court in cases M.S.Sheriff and another v. State of Madras and others 1954 AIR (SC) 397; Kamaladevi Agarwal v. State of West Bengal 2001 AIR (SC) 3846; K.G.Premshanker v. Inspector of Police and Anr. 2002 AIR (SC) 3372; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005 AIR (SC) 2119 and Smt.Rumi Dhar v. State of West Bengal and another 2009(2) RCR (Criminal) 704, wherein, it was ruled that "mere presence of arbitration clause in the agreement, with regard to mechanism to settle the civil dispute, ipso facto, is not a cogent ground to quash the criminal proceedings at this initial stage of framing the charges.
15. Therefore, once the matter has already been well settled by the Hon'ble Supreme Court, in that eventuality, the question of any indicated contradictions in the judgments (Annexures P10 to P14 & P16) will pale into insignificance and no reference is required to be made, as (contrary) urged on behalf of the petitioners. As indicated earlier, the remaining pleas raised in the petitions and now sought to be advanced by their learned counsel, have already been considered and repelled by this Court in Mohinder Singh's case (supra).
16. As described hereinbefore, there are direct allegations against the petitioners-accused that the department of Food & Civil Supplies has entrusted A grade paddy for milling into rice, which was duly acknowledged by them (accused). Instead of returning the A grade rice of the required quantity, they only returned a very less quantity (weight) of rice. That means, they have not returned the entire A grade quality rice till today, cheated, misappropriated the same, caused a huge monetary loss to the department and converted it for their own illegal gains. Consequently, the petitioners were charged for the commission of offence of misappropriation, punishable under Section 406 IPC and defined u/s 405 IPC, which postulates that "whoever, being in any manner entrusted with property, CRM Nos.M-43999 & 51199 of 2007 -7- or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
17. Moreover, Hon'ble Supreme Court in case Rajesh Bajaj vs. State NCT of Delhi and others (1999) 3 SCC 259 has held that "it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage." It was also observed that "a commercial transaction or money transaction is hardly a reason for holding that the offence of cheating would elude from such a transaction". Above-all, the offence so committed by the petitioners, would be the moot points to be decided during the course of trial after receipt of evidence by the trial Court. Therefore, since all the essential ingredients of the indicated offence are complete and accordingly, the trial Court has rightly charge sheeted the petitioners-accused, so, to me, no ground for quashing the charges framed against them is made out at this initial stage.
18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
19. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main cases, as there is no merit, therefore, the instant petitions are CRM Nos.M-43999 & 51199 of 2007 -8- hereby dismissed as such.
20. Needless to state that nothing recorded, here-in-above, would reflect, in any manner, on merits during the trial of the main cases, as the same has been so observed for a limited purpose of deciding the present petitions in this relevant connection.
5.3.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No