Naheed Ara Moonis, J.:— Counter-rejoinder affidavits have already been exchanged between the parties and are on the record.
The instant application under Section 482 Cr.P.C has been filed by the applicants with a prayer to quash the proceeding of complaint case no. 628 of 2011, Sudha Kant Pandey v. K. L. Singh, under Sections 403, 406 IPC, P.S Cantt., District Allahabad.
Heard Shri G. S. Chaturvedi, learned Senior Counsel, assisted by Shri Vinay Khare, the learned counsel appearing on behalf of the applicants, Shri Anil Srivastava, the learned counsel appearing on behalf of opposite party no. 2, the learned AGA and have taken through the record.
The prosecution case in a nutshell is that the opposite party no. 2 is the proprietor of Manish Engineering Enterprises, who is engaged in the business of contract of development work and construction. The opposite party no. 2 filed a complaint against the applicant no. 1, who is the Managing Director of Indian Farmers Fertilizers Co-operative Limited(hereinafter referred to ‘IFFCO’) and the applicant no. 2 is posted as its Technical Director. The opposite party no. 2 was entrusted with the work order on 1st February, 1996 by the applicants, which was to be completed within a period of three months. Later on it came to his knowledge that the work order was terminated by the applicants. The bill was passed for the work completed by the opposite party no. 2 on 10.7.1996 The opposite party no. 2 constantly demanded the payment and moved a representation, but they paid no heed. A piece of land was provided to him in the premises of IFFCO Phulpur, Allahabad to use as office and store of the equipments, articles and important records, which were worth of thirty five lacs rupees. The applicants by committing fraud, not only terminated the work contract and grabbed the entire amount towards the work done by him, but had also taken illegal possession of the entire goods and articles lying in the said premises. They had flatly refused that neither they will make any payment nor they will return any material and record. Thus they have committed criminal breach of trust and liable to be punished. On the basis of the aforesaid facts and circumstances the complaint was filed on 31.5.2011 before the court of Additional Chief Judicial Magistrate, Court No. 10, Allahabad and the case was registered as case no. 628 of 2011. The court below recorded the statement of the opposite party no. 2 under Section 200 Cr.P.C and the statements of Prabhunath Sharma and Sabhakant Pandey under Section 202 Cr.P.C, on the basis of which the court below found that prima facie offence under Sections 403, 406 IPC is made out against the applicants, but no offence under Section 415 IPC is made out, hence summoned them under Sections 403, 406 IPC to face trial.
The submission of the learned counsel for the applicants is that the proceeding initiated against the applicants is barred by Section 468 Cr.P.C, as sub Section (c) of sub Section (2) provides three years limitation if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The cognizance has been taken after much lapse of time as prescribed for the offence punishable under Sections 403, 406 IPC. The allegations made in the complaint are relating to the contract agreement of the year 1996, whereas the complaint has been filed in the year 2011, and thereafter the cognizance has been taken. According to the First Schedule in the Classification of Offence, the offence punishable under Section 406 IPC the maximum imprisonment is provided for three years or fine or both and under Section 403 IPC maximum imprisonment for two years or fine or both. Therefore, on this count alone the proceeding initiated against the applicants is liable to be quashed.
It is further argued that the matter is purely of civil nature and on identical ground the brother of the opposite party no. 2, Sabhakant Pandey had filed a complaint against the applicants and Sudhakant Pandey was examined as witness under Section 202 Cr.P.C which was dismissed under Section 203 Cr.P.C by the Magistrate concerned by order dated 18.8.2011 In the present complaint the complainant's brother, Sabhakant Pandey has been examined as P.W.2 under Section 202 Cr.P.C while the complaint filed by the present complainant Sudhakant Pandy, the opposite party no. 2 was examined under Section 200 Cr.P.C
It is further argued that the dispute regarding the payment was referred to the arbitration, where an arbitrator was appointed in the arbitration proceedings, the same claim was made as alleged in the present complaint, which was adjudicated by the concerned arbitrator and the claim was rejected on 11.3.2007 The validity of the award is pending before the District Judge, Allahabad as arbitration case no. 21 of 2007, therefore, initiation of criminal prosecution is nothing but an abuse of the process of law. The applicants are being harassed who are the responsible persons of the society, no prima facie offence of dishonest misappropriation of property or criminal breach of trust are made out against them. In spite of that non bailable warrants have been issued in pursuance of the summoning order passed against them, hence the entire proceeding is liable to be quashed.
The learned counsel for the applicants has relied upon the decision of the Apex Court reported in (1996) Vol. 5, S.C.C P.591, Central Bureau of Investigation, SPE, SIU(X), New Delhi v. Duncans Agro Industries Ltd., Calcutta and has laid stress that, where the act constituting both the civil and criminal wrong, the Apex Court has upheld the decision of the Hon'ble High Court, quashing the complaint. In the instant case the matter relates to civil dispute, no goods were entrusted to them and as such there is no question of misappropriation or criminal breach of trust present to constitute any offence.
Per contra, the learned counsel appearing on behalf of opposite party no. 2 has vehemently argued that a piece of land was given to the firm of the opposite party no. 2 for the purposes of store of articles, equipments including the important records within the campus of IFFCO, Phulpur, Allahabad. The opposite party no. 2 was never informed with regard to the termination of work, while the construction was going on, and by concealing the fact of termination of work, not only misappropriated the amount as mentioned in the complaint of Rs. 22,81,530/-, but also the entire material kept in the campus was refused to be returned. The matter regarding the payment of work done was referred to the arbitration and the award was also passed by the arbitrator on 11.3.2007, but despite assurance the amount was not paid. In this regard the brother of the opposite party no. 2 went to meet the applicant no. 1 at the head office at IFFCO Sadan, C-1, District Centre, Saket Place, Saket, New Delhi, who absolutely refused that the articles and equipments kept in the store at IFFCO, Phulpur, Allahbad will neither be returned nor any payment will be done. In this regard a unit head of IFFCO at Phulpur, Allahabad were also requested to return the goods but they bluntly refused to return the entire articles, rather he was abused and threatened to life and was thrown out by the security staff on the instructions of the applicant no. 1. When this matter was reported by the brother of the opposite party no. 2, no first information report could be lodged, hence he filed a criminal complaint no. 2658 of 2009 against the applicants. The said complaint was illegally rejected by order dated 18.8.2011 and the same was challenged by means of filing a criminal revision no. 334 of 2011 pending before the Additional Sessions Judge, Court No. 5, Allahabad, which has been admitted and the record of the lower court has been called for. The applicants have already put in appearance in the present case and filed an application on 3.1.2012 before the court of Additional Chief Judicial Magistrate, Court No. 10, Allahabad, seeking a month's time for filing objection. The said application has been filed along with the counter affidavit as Annexure No. C.A.12A. Thus, instead of appearing before the court concerned the applicants have filed the present application under Section 482 Cr.P.C for quashing of the entire proceedings against whom order of non bailable warrants have been successively passed. The court below has found prima facie offence under Sections 403, 406 IPC is clearly made out, as they have misappropriated the goods which is still lying in the premises and when the same was demanded, they had refused to return the same.
It is further argued by the learned counsel that, so far as the question of limitation is concerned, the present complaint has been filed on 31.5.2011, wherein it has been specifically mentioned that the applicants had refused to return the money and other materials articles and the records etc. on 20.10.2009 and 5.11.2009, therefore, even by computing period of limitation the complaint has been filed within a period of three years and the court below has rightly taken cognizance against them by passing the summoning order as the offence is continuing one. It cannot be said that the matter is of purely civil in nature. As the property was dishonestly misappropriated, therefore they have committed criminal breach of trust. The applicants in the instant case have already appeared by moving an application before the court concerned on 3.1.2012 seeking time to file objection, this fact has been deliberately concealed in the petition which is an abuse of the process of court. Even if the arbitration proceeding is pending, there is no bar to initiate the criminal proceedings, therefore, the instant petition lacks of any merit and deserves to be dismissed with special costs.
I have considered the rival submissions of the learned counsels for the parties advanced at the bar and have gone through the record.
So far as the first submission of the learned counsel for the applicants, that the cognizance taken in pursuance of the complaint is barred by the period of limitation as provided under Section 468 Cr.P.C, even if the argument is accepted, such complaint cannot be thrown out at the threshold on the ground of limitation. From the allegations made in the complaint it is evident that the offence is in the nature of continuing wrong as after the completion of the work the payment was not done and the goods were lying in the campus belonging to the applicants, which were not returned, therefore, the opposite party no. 2 had to file a complaint against the applicants. Thus, the cognizance taken in pursuance of the complaint cannot be said to be barred by period of limitation.
In my opinion, to constitute an offence under Section 405 Cr.P.C it is required that the accused must be entrusted with the property or with dominion over the property and in the instant case the property belonging to the complainant was lying in the premises of the applicants, and as such the latter have dominion over the property of the complainant, which they had refused to return, prima facie satisfying the ingredients of Section 405 Cr.P.C The expression entrusted mentioned in Section 405 Cr.P.C has wide and different implications in different context. The question with regard to the property whether belonging to the opposite party no. 2 was lying in the premises of the applicants, was under any legal or illegal contract, expressed or implied and the same has been misappropriated dishonestly by the accused persons shall be proved on the basis of evidence led by the parties during trial, and it will be too premature to form an opinion that no offence of any criminal breach of trust is made out against the applicants.
It is also settled law that, even if the allegations constitute prima facie civil wrong, the criminal prosecution is not barred. Arbitration proceedings cannot come in the way to effect the criminal proceedings taken separately. It has been held by the Hon'ble Apex Court in Shri Krishna v. State of Andhra Pradesh, reported in 2009 (64) ACC P.629, S.C, relied upon the decision in Trisuns Chemichal Industry v. Rajesh Agarwal, 1999 (39) ACC, 790 (S.C), that arbitration proceedings taken during the continuance of complaint under Section 415, 420 IPC could not be thwarted. The standard of proof in civil and criminal proceedings being different, hence the criminal proceedings cannot be quashed in its inception. The arbitration proceeding is filed for the purpose of obtaining different relief. The two arises from separate cause of action, therefore, the criminal proceedings cannot be disturbed.
In view of the facts and circumstances when the applicants have already moved an application before the Chief Judicial Magistrate for filing the objection in the instant case and non bailable warrants have been issued against them, thus at the same time cannot approach before this Court for quashing the entire proceedings. It is well settled that at the stage of taking cognizance it is not necessary to the court below to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. The decision in the case of State of Haryana v. Bhajanlal, 1999 SCC (Crl) 426 and State of Bihar v. P. P. Sharma, 1992 SCC (Crl) 192, the principles regarding the quashing of criminal cases have been settled, therefore, this Court refrains from passing any order to quash the proceeding at the very initial stage.
Substance of allegations in the complaint, if read as a whole, prima facie makes out the commission of offence against the applicants, and as such the learned Magistrate has committed no error in taking cognizance and passed the summoning order against the applicants. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of appreciation of the evidence in respect of the contentions raised as above in accordance with law. It is the function of the trial court. The allegations made in the complaint as well as the documentary evidence brought on record by the complainant is just and proper to proceed against the applicants. This court in exercising jurisdiction under Section 482 Cr.P.C cannot embark upon the enquiry as to whether the court below has wrongly proceeded against the applicants, or whether on reasonable appreciation of it accusation would not be sustained. The applicants have got a right of discharge under Section 245 Cr.P.C through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court.
Hence, the prayer for quashing the proceeding is refused.
In view of the above conspectus of the case, neither there is any miscarriage of justice, nor any abuse of the process of the court. Hence, the present petition is devoid of any merit and is hereby dismissed.
However, the applicants are directed to surrender and apply for bail within a period of thirty days from the date of the receipt of the certified copy of this order, the Magistrate concerned shall fix a date about two weeks thereafter for their appearance and in the meantime release the applicants on interim bail on such terms and conditions as the court concerned considers fit and proper till the date fixed for the disposal of the regular bail. The court concerned shall also direct the Public Prosecutor to seek instructions from the Investigating Officer by the date fixed and also give an opportunity of hearing to the complainant and thereafter decide the regular bail application of the applicants in accordance with the observations of the Full Bench of this Court in Amrawati v. State of U.P(2004) (57) ALR 290 affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh v. State of U.P2009 (3) ADJ 322 (SC) and reiterated by the Division Bench of this Court in Sheoraj Singh alias Chuttan v. State of U.P, 2009 (65), ACC 781. If further instructions are needed or if adjournment of the case on the date fixed for hearing becomes unavoidable, the court may fix another date, and may also extend the earlier order granting interim bail, if it deems fit.
In case the applicants fail to appear before the court concerned on the dates fixed, it will be open to the Public Prosecutor to move an application for cancelling the order of interim/final bail and the court concerned may pass an appropriate order on merits.
It is made clear that any observation made herein above shall not effect the merits of the case during trial.