Bombay High Court

In The High Court Of Judicature At ... vs Unknown on 1 December, 2011

Bench: A.P. Bhangale

                                           1




                                                                              
                                                      
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                       NAGPUR BENCH : NAGPUR




                                                     
    Criminal Application No.  3463 of 2009




                                          
    Applicant          :  Rajan son of Manoharlal Dhaddha, aged about 33
                           
                          years, occ: Government Contractor, resident of
                          
                          299, Nandanwan Layout, Nagpur

                         versus

    Respondent         :  The State of Maharashtra, through P. S. O.

Saoner, District Nagpur

Mr M. P. Khajanchi, Advocate and Mr R.M. Daga, Advocate with him for applicant.

Mr S. J. Jichkar, Addl. Public Prosecutor for respondent-State.

Coram : A. P. Bhangale, J

Dated : 1st December 2011

Oral Judgment

1. By this application, petitioner prays for to quash FIR registered by

respondent PSO, Police Station, Khamgaon in Crime No. 254/07 for the

offences punishable under Sections 406, 409 and 109 of the Indian Penal

Code read with Sections 3 and 7 of the Essential Commodities Act.

2. Heard learned counsel for the parties. Perused the application

and reply filed by respondent-State.

3. Applicant claims that he is a renowned and reputed Government

contractor and transporter carrying on his business in the name of Shri

Ganesh Carriers. He also claims that he is a registered Government

contractor for transporting food-grains to all 14 tahsils of Nagpur district and

has reputation in the Department as to his integrity and honesty with

unblemished character. He was awarded contract since 1996 by the

Government for transportation of food-grains. He also enjoys good social

status. He is President of Mahavir Jain Yuvak Mandal, Nagpur; office bearer

of several social organizations of national and international repute like Jain

International Trade Organization, Mahavir International etc. It is the case of

the applicant that he was sought to be prosecuted under Sections 406, 409,

109 of the Indian Penal Code read with Sections 3 and 7 of the Essential

Commodities Act by the police despite the fact that he has been awarded

contract by the Government for transporting wheat, rice etc. as stipulated in

writing in contract, from one place to another in the Nagpur district. It is

submitted that the petitioner had entered into a written contract with the

Government in the name and style as Shri Ganesh Carrier having office at Plot

No. 299, Nandanwan Layout, Nagpur. This contract was for a period of one

year from 10th April 2003 which was extended from time to time which is still

existing. According to the applicant, he was under contractual obligations to

transport food-grains from one place to another in accordance with the said

written contract and for the rates as agreed per kilometer by means of trucks

hired for that purpose.

4. As per the allegations of prosecution, Tahsildar, Saoner verified

stock of wheat and rice in the Government godown in the month of October

2007 and it was found that some stock of wheat and rice was less in quantity.

He lodged report with Police Station, Saoner and after investigation, offences

punishable under Sections 406, 409, 109 of the Indian Penal Code read with

Sections 3 and 7 of the Essential Commodities Act.

5. Learned counsel for the applicant contends that in fact, go-down

manager by name Dattatraya Bandelwar was responsible for illegal disposal of

wheat and rice. He submits that when as per record, entire 51 trucks reached

the Government godown and there are written acknowledgments of due

delivery of the quantity of food-grains loaded, there is no question of short

supply of food-grains on the part of applicant. He further submits that on the

basis of statement of co-accused (godown manager Dattatraya Bandelwar),

present applicant has been prosecuted. Main limb of the argument is, the

dispute is purely of a civil nature. Learned counsel has taken me through

various clauses of Transport Agreement between the parties and in particular,

clause 27 thereof. He contends that clause 27 provides that any dispute

arising under the agreement or in relation to the agreement either during the

continuance of the agreement or thereafter shall be referred to the Arbitrator

or Commissioner of the Division. According to him, therefore, in the light of

this specific clause, prosecution of the applicant is rendered bad in law.

6. Learned Additional Public Prosecutor, on the other hand,

contends that there is ample material with the prosecution which shows prima

facie involvement of the applicant for commission of offences registered

against him and, therefore, application deserves to be dismissed.

7. I have gone through various acknowledgments filed on record

and Transport Agreement. Learned APP does not dispute various clauses

contained in the Transport Agreement. Clause 27 of the Agreement reads as

under :

"27. Any dispute arising under this Agreement or in relation

thereto including the interpretation of this agreement either

during the continuance thereof or thereafter shall be referred to

the arbitration of the Commissioner of the Division where the

transport work is to be carried out or any other officer authorised

by him in that behalf in writing within six months of the expiry of

the agreement and every such reference will be governed by the

provisions of the Arbitration Act, 1940 or any modification thereof

for the time being in force. The decision of such arbitrator shall

be final and binding on the parties to this agreement."

8. On perusal of the above clause, it is obvious that if according to

the Department, there was short supply of food-grains, it could have definitely

referred the dispute to the Arbitrator or the Commission for fixing liability, if

any. In Bal Kishan Das v. P. C. Nayar reported in 1991 Supp (2) SCC 412

pressed into service by learned counsel for the applicant, criminal

proceedings for the offence punishable under Section 406 of the Indian Penal

Code were initiated against the applicant by Food Corporation of India for

shortage of paddy and rice procured by him for FCI. Criminal prosecution was

quashed by the Apex Court in the light of the fact that there was arbitration

agreement between parties permitting shortage upto certain limit and for

payment of penalty beyond that at the rates prescribed in the agreement.

9. Similarly, in Joseph Salvaraja v. State of Gujarat & ors reported in

(2011) 3 SCC (Cri) 23, the Apex Court has observed thus :

"In our opinion, the matter appears to be purely civil in nature.

There appears to be no cheating or a dishonest inducement for

the delivery of property or breach of trust by the appellant. The

present FIR is an abuse of process of law. The purely civil dispute,

is sought to be given a colour of a criminal offence to wreak

vengeance against the appellant. It does not meet the strict

standard of proof required to sustain a criminal accusation. In

such type of cases, it is necessary to draw a distinction between

civil wrong and criminal wrong as has been succinctloy held by

this Court in Devendra v. State of UP, relevant part thereof is

reproduced hereinbelow (SCC p. 505 para 27)

"27..... A distinction must be made between a civil wrong and a

criminal wrong. When dispute between the parties constite only a

civil wrong and not a criminal wrong, the courts would not permit

a person to be harassed although no case for taking cognizance of

the offence has been made out".