Y.K. Gupta vs State Of U.P. & 3 Others
2015 Latest Caselaw 3068 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.							Reserved on 18.9.2015
 
Court No. - 40				 	Delivered on 12.10.2015
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 12866 of 2014
 
Petitioner :- Y.K. Gupta
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Prakash Padia
 
Counsel for Respondent :- Govt. Advocate,S.K.Lal,Vimlesh Kr.Yadav
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Bala Krishna Narayana,J.)

Heard Sri Prakash Padia, learned counsel for the petitioner, learned AGA for respondent nos. 1, 2 and 3 and Sri S. K. Lal, learned counsel for respondent no. 4 and perused the record.

This writ petition has been filed by the petitioner Y.K. Gupta, Executive Director-Cum-State Level Coordinator, Indian Oil Corporation Limited, Gariahat Road, Kolkata, with the prayer to issue a writ, order or direction in the nature of certiorari quashing the F.I.R. Dated 18.7.2014 being FIR No. 258 of 2014 (Annexure no. 1) registered as Case Crime No. NIL of 2014, under sections 420, 467, 468, 471 I.P.C., P.S. Kotwali, District Hathras. A further prayer has been made for issuing a writ of mandamus restraining the respondents from taking any coercive action against the petitioner in pursuance of the impugned FIR and for imposing an exemplary cost of Rs. 2 Lacs upon the respondent no. 4 for filing the impugned FIR against the petitioner and two other senior officers of the Corporation without any basis and by concealing the material facts.

Pleadings between the parties have been exchanged. With the consent of the learned counsel for the parties this petition has been heard at the admission stage and is being decided on merits finally.

The brief facts of the case are that an L.P.G. Gas Agency was awarded to the respondent no. 4 by the Indian Oil Corporation Limited (hereinafter referred to as the Corporation) in the year 1989 and the distributorship was commissioned on 31.8.1989 under the Scheduled Caste category with Sri Virendra Deo as sole Proprietor, respondent no. 4. In this regard the distributorship agreement was duly signed between the officials of the Corporation and the respondent no. 4 on 28.3.1994 (Annexure no. 2). On account of various irregularities committed by the respondent no. 4 a show cause notice was issued by the Corporation to him on 28.2.2000 requiring him to show cause why action in respect of his distributorship agreement including that of termination of the distributorship agreement be not taken against respondent no. 4. The respondent no. 4 submitted his reply to the show cause notice on 24.3.2000. The distributorship agreement was terminated by the Corporation vide its order dated 12.12.2000 (Annexure no. 3). Challenging the aforesaid order dated 12.12.2000 the respondent no. 4 preferred Civil Misc. Writ Petition No. 2144 of 2001 before this court, which was allowed by this court by order dated 28.9.2004 (Annexure no. 4) whereby the order dated 12.12.2000 was quashed with the liberty to the Corporation to pass a fresh order in accordance with law. In view of the liberty given by this court another order was passed by the Corporation on 12.7.2005 terminating the distributorship agreement, which was again assailed by the respondent no. 4 before this court in Civil Misc. Writ Petition No. 57978 of 2005, which was also allowed by this court on 30.8.2005 with a direction to the officials of the Corporation to pass a fresh order in the matter in accordance with the law.

Thereafter a show cause notice was issued by the Corporation to the respondent no. 4 on 14.2.2006, which was again challenged by the respondent no. 4 before this court by filing Civil Misc. Writ Petition No. 29536 of 2006, which was dismissed by this court by judgment and order dated 25.5.2006 (Annexure no. 5). Thereafter by an order dated 7/9.2.2007 passed by the General Manager of the Corporation the distributorship agreement between the Corporation and the respondent no. 4 was terminated. Against the order dated 7/9.2.2007 a fresh writ petition was preferred by respondent no. 4 before this court being Civil Misc. Writ Petition (C) No. 23467 of 2007. The copy of the distributorship agreement, which was filed by the respondent no. 4 in the aforesaid writ petition was dated 28.3.1994. Civil Misc. Writ Petition (C) No. 23467 of 2007 was dismissed by this court vide order dated 24.10.2009 (Annexure no. 7) on the ground of availability of statutory alternative remedy to the respondent no. 4 of approaching the Arbitrator after taking into account the arbitration clause contained in the distributorship agreement entered into between the parties on 28.3.1994. A review petition was filed by the respondent no. 4 against the order dated 24.10.2009, which was also dismissed by this court vide order dated 4.2.2010. The respondent no. 4 thereafter against the judgment and order of this court dated 24.10.2009 approached the Apex Court by filing a Special Leave Petition being SLP (Civil) CC No. 8014 of 2010, which was also dismissed by the Apex Court vide its order dated 5.7.2010.

The dispute between the parties thereafter was referred to Dr. R. K. Malhotra, who was appointed as the sole Arbitrator by the Director (Marketing), Indian Oil Corporation Ltd., New Delhi, on the application moved by respondent no. 4 before him on 22.7.2010. Before the Arbitrator the respondent no. 4 had raised an objection for the first time that the Corporation had forged the agreement dated 28.3.1994 as the date of the distributorship agreement was 25.3.1994 but since the copy of the agreement dated 25.3.1994 submitted by the respondent no. 4 (claimant) before the Arbitrator did not bear the signature of either of the parties, whereas the copy of the agreement dated 28.3.1994 submitted by the Corporation bore signature of both the parties, the sole Arbitrator vide his order dated 21.9.2012 (Annexure no. 9) directed the respondent no. 4 to substantiate his charge. Before the Arbitrator as many as six issues were framed and the issue no. 6 was "whether the dealership agreement is forged?" The sole Arbitrator after recording his findings gave the Award on 7.8.2013 (Annexure no. 10) against the respondent no. 4. The respondent no. 4 thereafter filed an application under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the Award dated 7.8.2013 before the District Judge, Hathras, which was numbered as Misc. Case No. 120 of 2010. Along with his application under section 34 of the Arbitration and Conciliation Act, 1996 the respondent no. 4 also moved an application under section 151 C.P.C. with the prayer to stay the effect and operation of the impugned Award and to restrain the Corporation's officials from appointing any new distributor in his place. The Corporation filed its written statement in Misc. Case No. 120 of 2010 and also its objection to the application under section 151 C.P.C. filed by the respondent no. 4 for interim relief in the aforesaid case (Annexure no. 16). As a result of a clerical mistake the date of distributorship agreement was wrongly mentioned as 25.3.1994 in place of 28.3.1994 in the written statement filed by the Corporation. As soon as the aforesaid mistake was discovered, an application along with affidavit dated 22.7.2014 was filed by the Corporation before the District Judge with the prayer to correct the date of the agreement. Since same error had crept in the objection filed on behalf of the Corporation before the District Judge, Hathras, in February 2014 against the application for interim relief filed by the respondent no. 4, an application with similar prayer for correcting the date of the distributorship agreement in the objection from "25.3.1994" to "28.3.1994" was filed before the District Judge, Hathras.

Taking advantage of the incorrect date of agreement typed out in the written statement and the objection filed by the Corporation in Misc. Case No. 120 of 2010 as "25.3.1994" the respondent no. 4 moved an application under section 156(3) Cr.P.C. before the Judicial Magistrate on 1.5.2014 (Annexure no. 19) with the prayer for registering an FIR against the petitioner and two other senior officers of the Corporation and for investigating the same. The said application was supported by an affidavit of respondent no. 4. The Judicial Magistrate (Evening) Hathras, vide order dated 11.7.2014 (Annexure no. 21) allowed the application filed by the respondent no. 4 before him under section 156(3) Cr.P.C. and directed the S.H.O. P.S. Kotwali, District Hathras, to register FIR either through himself or through a subordinate officer under relevant sections and to investigate the same. In pursuance of the aforesaid order dated 11.7.2014 FIR No. 258 of 2014 was registered as Case Crime No. NIL of 2014, under sections 420, 467, 468, 471 I.P.C., at P.S. Kotwali, District Hathras, against the petitioner as well as two other officers of the Corporation namely R. S. Rao and Indra Prakash (Annexure no. 1).

Learned counsel for the petitioner submitted that the impugned FIR has been lodged by the respondent no. 4 containing absolutely false, concocted and vexatious allegations against the petitioner after an inordinate and unexplained delay of almost 19 years without any plausible explanation for the delay, which is fatal to the prosecution.

He next submitted that the allegations made in the impugned FIR are an afterthought. The impugned criminal proceedings have been initiated by respondent no. 4 after he failed to succeed before this court as well as before the Arbitrator in his challenge to the termination of his distributorship agreement dated 28.3.1994 to harass the petitioner and two other senior officers of the Corporation with malafide intention of seeking vengeance.

He further submitted that the respondent no. 4 had never asserted in various writ petitions filed before this court after the distributorship agreement between the parties dated 28.3.1994 had been terminated by the Corporation or before the Apex Court in SLP preferred by him against the judgment and order of this court that the agreement dated 28.3.1994 was a forged and fabricated document and the agreement under which the respondent no. 4 was awarded LPG Gas Agency was dated 25.3.1994.

Learned counsel for the petitioner has next submitted that although the respondent no. 4 had halfheartedly raised an objection before the Arbitrator that the date of the agreement between the parties was 25.3.1994 and that the agreement dated 28.3.1994 which had been terminated by the Corporation had been fabricated by the officials of the Corporation and a specific issue with regard to the aforesaid namely issue no. 6 was framed by the Arbitrator but the respondent no. 4 did not press the aforesaid issue as would be evident from the perusal of the Award dated 7.8.2013.

Learned counsel for the petitioner has further submitted that respondent no. 4 even in the application moved by him before the District Judge, Hathras, under section 34 of the Arbitration and Conciliation Act, 1996, for setting aside the award dated 7.8.2013 which was registered as Misc. Case No. 120 of 2010 had not taken any plea that the agreement dated 28.3.1994 was forged or that the distributorship agreement between the parties was dated 25.3.1994 and it was only after the date of distributorship agreement was wrongly typed out in the written statement and objection filed on behalf of the Corporation in Misc. Case No. 120 of 2010 as "25.3.1994" in place of "28.3.1994" and although the Corporation had moved an application for rectifying the same as soon as the aforesaid mistake was discovered, the respondent no. 4 moved an application under section 156(3) Cr.P.C. falsely alleging therein that the agreement under which the respondent no. 4 was awarded L.P.G. Gas distributorship by the Corporation was dated 25.3.1994 and the distributorship agreement dated 28.3.1994 was forged by the employees of the Marketing Division and L.P.G. Department of the Corporation. It was also alleged in the application u/s 156(3) Cr.P.C. that the signatures contained in the agreement dated 28.3.1994 were forged and the agreement dated 28.3.1994 had been fabricated by the petitioner and one Indra Prakash with fraudulent intention of terminating the distributorship agreement of the respondent no. 4 by alleging that he had flouted the terms and conditions stipulated under the agreement dated 28.3.1994.

Learned counsel for the petitioner lastly submitted that under the facts and circumstances of the case the criminal prosecution of the petitioner amounts to an abuse of the process of law.

Per contra Sri S. K. Lal, learned counsel for respondent no. 4, submitted that from perusal of the FIR, on the basis of the allegations have been made therein it cannot be said that no offence against the petitioner is disclosed. He has further submitted that the impugned FIR is not liable to be quashed merely on the ground of delay as the same has been satisfactorily explained by the respondent no. 4 in the application u/s 156(3) Cr.P.C. itself, copy whereof is Annexure no. 19.

Learned AGA also adopted the submissions made by Sri S. K. Lal, learned counsel for respondent no. 4.

We have very carefully considered the submissions made by learned counsel for the parties and perused the impugned FIR as well as the pleadings of the parties and other materials brought on the record. The impugned FIR refers to a document dated 28.3.1994, which according to the petitioner is the agreement under which the respondent no. 4 was awarded LPG Gas distributorship but which according to the respondent no. 4 was forged by the petitioner and co-accused R. S. Rao and Indra Prakash and used by them as genuine fraudulently with the intention of terminating the distributorship agreement executed between the parties on 28.3.1994 although the distributorship agreement between the parties was dated 25.3.1994.

It is noteworthy that the first show cause notice was given by the Corporation to the respondent no. 4 on 28.2.2000 requiring him to show cause why action in respect of the distributorship agreement including that of the termination of the distributorship agreement may not be taken against respondent no. 4. After considering the reply submitted by respondent no. 4 before the Corporation in response to the show cause dated 28.2.2000 his dealership agreement was terminated by the Corporation vide order dated 12.12.2000. A perusal of the order dated 12.12.2000, copy whereof has been filed by petitioner as Annexure no. 3 to the petition shows that the date of the distributorship agreement between the parties, which was cancelled by the Corporation was mentioned therein as 28.3.1994. The order dated 12.12.2000 was challenged by respondent no. 4 before this court in Civil Misc. Writ Petition No. 2144 of 2000, which was allowed by this court vide order dated 28.9.2004. The said order of this court also mentions the date of the distributorship agreement between the parties, which was cancelled as 28.3.1994. In the order dated 25.5.2006, which was passed by this court in Civil Misc. Writ Petition No. 29536 of 2006, which was preferred by the respondent no. 4 against the show cause notice dated 14.2.2006 issued by the Corporation to the respondent no. 4 was dismissed. In this order the date of the distributorship agreement is again mentioned as 28.3.1994 (Annexure no. 5). A perusal of the order passed by the Corporation dated 7/9.2.2007 (Annexure no. 6) again reflects that the date of the distributorship agreement between the respondent no. 4 and the Corporation, which was cancelled by the aforesaid order, was mentioned as 28.3.1994. The writ petition no. 23467 of 2007 preferred by the respondent no. 4 before this court against the order dated 7/9.2.2007 passed by the Corporation cancelling the distributorship agreement was disposed of by this court by order dated 24.10.2009 (Annexure no. 7) to the writ petition with a direction to the respondent no. 4 to invoke arbitration clause contained in the distributorship agreement. Even the most superficial reading of the order dated 24.10.2009 shows that the respondent no. 4 had even in writ petition no. 23467 of 2007 had not taken the stand that the date of the distributorship agreement was 25.3.1994 and not 28.3.1994 and the distributorship agreement dated 28.3.1994 was a forged and fabricated document. It appears that even in the review application filed by the respondent no. 4 for reviewing the order dated 24.10.2009 passed in writ petition No. 23467 of 2007 no such plea was raised by the respondent no. 4 as would be evident from perusal of the order dated 4.2.2010 by which the review petition was dismissed. It is true that in his claim filed before the Arbitrator the respondent no. 4 had for the first time raised the plea that the agreement dated 28.3.1994 had been forged by the officers of the Corporation and the agreement under which the respondent no. 4 was appointed as a distributor of LPG Gas by the Corporation was 25.3.1994 and an issue in this regard, which is to the following effect, was also framed:

"Whether the dealership agreement is forged?"

The finding, which was recorded by the Arbitrator on the issue no. 6 is as follows:-

"Initially the claimant made several allegations against the officers of respondent-corporation that the documents including the dealership agreement is forged, which was a serious allegation against IOCL officers. Based on this, the above issue was framed. However, on subsequent questioning, the claimant conceded that he is not pressing this issue. Hence, I conclude that the claimant made serious allegations against IOCL officers without any valid proof."

The claim of the respondent no. 4 was ultimately rejected by the sole Arbitrator by the Award given by him on 7.8.2013, copy whereof has been filed as Annexure no. 10. Even in the application filed by respondent no. 4 u/s 34 of the Arbitration and Conciliation Act, 1996, for setting aside the Award dated 7.8.2013 or in the application filed by him in the aforesaid case for interim relief the respondent no. 4 did not plead that the distributorship agreement dated 28.3.1994 is a forged document and it was only after taking note of the date of the distributorship agreement wrongly typed out as 25.3.1994 in place of 28.3.1994 in the written statement and the reply filed by the Corporation to the application for interim relief filed by respondent no. 4 in Misc. Case No. 120 of 2010 and although immediate steps were taken by the Corporation for rectifying the mistake, the impugned FIR was lodged against the petitioner and two other senior officers of the Corporation pursuant to the order of the Chief Judicial Magistrate, Hathras, on the application moved by the respondent no. 4 before him on 1.5.2014 u/s 156(3) Cr.P.C. The failure of the respondent no. 4 to challenge the genuineness of the distributorship agreement dated 28.3.1994 in the various writ petitions filed by him before this court against the show cause notices issued to him by the Corporation and the cancellation of his distributorship agreement as well as in the SLP filed by him before the Apex Court and his failure to press the issue no. 6 framed by the Arbitrator at his behest that the distributorship agreement dated 28.3.1994 was forged and fabricated and on his pleading that the agreement under which he was appointed as LPG distributor was 25.3.1994 and not 28.3.1994 and his failure to challenge the distributorship agreement dated 28.3.1994 in his application filed by him u/s 34 of the Arbitration and Conciliation Act, 1996, for the setting aside of the Award dated 7.8.2013 makes it abundantly clear that the impugned FIR has been lodged by the respondent no. 4 after he failed to succeed before this court and also before the Arbitrator, just to harass the petitioner with the malafide intention and ulterior motive of settling a personal grudge. The allegations made in the FIR clearly appear to be afterthought, false and concocted specially in the teeth of the admitted factual position of this case that the respondent no. 5 despite raising a plea before the Arbitrator in arbitration proceedings between the parties that the distributorship agreement dated 28.3.1994 was forged by the officers of the Corporation and the actual agreement was dated 25.3.1994 and signature of respondent no. 4 on the agreement dated 28.3.1994 had been forged and despite an issue being framed by the Arbitrator in that regard, the respondent no. 4 did not press the aforesaid issue before the Arbitrator and as a consequence the said issue had stood decided against him. Initiating criminal proceedings against the petitioner and two other officers of the Corporation thereafter on the basis of the same allegations in our opinion is not permissible under law.

We have very carefully gone through the contents of the application filed by respondent no. 4 u/s 156(3) Cr.P.C. (Annexure no. 19) as well as the impugned FIR registered against the petitioner and two other officers of the Corporation pursuant to the order passed on the application u/s 156(3) Cr.P.C. The second last paragraph of the application filed by respondent no. 4 u/s 156(3) Cr.P.C. contains a recital that when the respondent no. 4 had approached the Superintendent of Police, Hathras, for lodging FIR against the petitioner and two other officers of the Corporation, he was sent by the Superintendent of Police, Hathras, to the Station House Officer, Police Station Kotwali, Hathras, for lodging the FIR. The Station House Officer, P.S. Kotwali, Hathras, despite receiving the complaint of respondent no. 4 from him had failed to register the same. The respondent no. 4 has failed to mention the date on which he had approached the Superintendent of Police, Hathras, and also the date on which he had submitted the written complaint to the S.H.O., P.S. Kotwali, Hathras, on the oral direction of the S. P., Hathras. He has further failed to bring on record either a copy of the written complaint allegedly given by him to the S.H.O., P.S. Kotwali, Hathras, or any proof of the receipt of the written complaint by the concerned S.H.O. The impugned FIR also contains verbatim reproduction of the same recital.

In our opinion the explanation furnished by the respondent no. 4 for the inordinate delay of more than 19 years in initiating the criminal proceedings against the petitioner and two other officers of the Corporation in the year 2014 with regard to the offences allegedly committed by them in respect of the distributorship agreement, which was entered into between the parties in the year 1994 apart from being vague does not appear to be plausible.

In Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors. AIR 2010 SC 3624, the Apex court while dealing with a case of inordinate delay in launching a criminal prosecution, has held as under:

"In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide : Chandrapal Singh & Ors. v. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. v. State of U.P.& Ors., AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P. & Ors., (2008) 12 SCC 531)."

In the aforesaid facts the instant writ petition in our opinion is squarely covered by the decision in Kishan Singh (supra) and thus the impugned criminal prosecution of the petitioner ought to be labled as nothing more than abuse of the process of law.

For the aforesaid reasons the writ petition succeeds and is allowed. The impugned FIR dated 18.7.2014 (Annexure no. 1) as well as all other subsequent proceedings taken pursuant thereof against the petitioner are hereby quashed.

Order Date :- 12.10.2015

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