Coromandel International ... vs State Of Chhattisgarh
2021 Latest Caselaw 2649 Chatt

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                                                                      AFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                          WPCR No. 02 of 2016

                         Reserved on : 04.08.2021

                         Delivered on : 01.10.2021

Coromandel International Limited Registered under Companies Act
1956, Having registered office at: 1-2-10, Sardar Patel Road,
Secundarabad Hyderabad, Andhra Pradesh- 500003.
Through: The Zonal Manager, Coromandel International Limited, L-7,
Avanti Vihar, Sector-1, Raipur, District- Raipur (C.G.)
                                                          ---- Petitioner
                                 Versus
1.    State of Chhattisgarh, Through: The Secretary to the Govt. of
      Chhattisgarh, Department of Home Mantralaya: Mahanadi
      Bhawan, Naya Raipur P.S.- Rakhi, Raipur (C.G.)
2.    Superintendent of Police, Rajnandgaon, District- Rajnandgaon
      (C.G.)
3.    Station House Officer, P.S./Thana - Basantpur, Rajnandgaon,
      District- Rajnandgaon (C.G.)
4.    Shri Vikram Meghavani, S/o Shri Dilip Kumar Meghavani, Aged
      About 28 Years, Partner: Dhanguru Road Carrier Plot No. 5,
      Block No. 03, Uttam Vasundhara Nagar, Bhilai, District- Durg
      (C.G.)
5.    Shri Rahul Meghavani, S/o Shri Dilip Kumar Meghavani, Partner:
      Dhanguru Road Carrier Plot No. 5, Block No. 03, Uttam
      Vasundhara Nagar, Bhilai, District- Durg (C.G.)
                                                       ---- Respondents

For Petitioner : Mr. Anurag Dayal Shrivastava, Advocate For State/ res. 1 to 3 : Mrs. M. Asha, Panel Lawyer. For Respondent 4 & 5 : None though served notice.

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. ORDER

1. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking direction to respondent No. 3 to register FIR against respondent No. 4 & 5 on the basis of

complaint (Annexure P/1) made by him and further to submit the report under Section 173 of the Cr.P.C. before the Competent Court.

2. The brief facts as projected by the petitioner are that the petitioner company is manufacturer/ supplier/ seller of fertilizers registered under the Companies Act, 1956 having its office at Secundarabad, Telangana. As per order of allocation granted by the Central Government under the Fertilizer (Control) Order, 1985 (for short "the Order 1985"), the petitioner company supplies fertilizers in the State of Chhattisgarh also. The fertilizer is notified as essential commodity by the Central Government under the Essential Commodity Act, 1955 (for short "the Act, 1955"). Its allocation for distribution/ sale is entirely under control of the Central Government and the Department of Agriculture of the State Government under the Order 1985. In the year 2012, under the order of allocation granted by Central Government under Section 6 of the Act, 1955, the petitioner company had brought the fertilizer to the State and for handling and transporting of the said fertilizer, the petitioner company had entered into an agreement with 'Dhanguru Road Carrier'.

3. The said road carrier is registered under department of Labour bearing No. 362/BL/CE/2011 in which Vikram Meghavani and Rahul Meghavani are partners. The total quantity of the fertilizer, which was brought by the petitioner company in the year 2012 and handed over to the said Dhanguru Road Carrier for its handling and transporting only under the delivery orders of the petitioner company, were 978 MT and 1556.450 MT of 10:26:26 and 20:20:0:13 of product Godawari and 127.600 MT of FOS Gold Organic. These fertilizers were unloaded at Railway rack point of Rajnandgaon which was duly intimated to the Central Government and the State Government. The said fertilizers were stored by said Dhanguru Road Carrier in the godown which was licensed by the department of Agriculture under Clause 8 of the Order 1985.

4. Learned counsel for the petitioner would submit that under the delivery orders, time to time, the fertilizer was delivered to authorized agents by the said road carrier and by the end of month on the intimation of the said H&T agency, the stock of remaining quantity was being intimated to the Director- Agriculture by the petitioner company. Every sale and its distribution were also uploaded to the fertilizer monitoring system for enabling the Central Government to verify its distribution. He would further submit that on 19.03.2015, information was received by the petitioner company through Police Station- Basantpur, Rajnandgaon that the partner of the said H&T agency-Vikram Meghavani had lodged a report on 06.02.2015 against its manager namely Shahanawaz Khan alleging that in between 2012 - 2014, the said manager had embezzled the fertilizer quantity of which is 210 MT of 10:26:26 and 180 MT (20:20:0:12) and sold it out to unauthorized persons. It is mentioned in the said report that the shortage of the fertilizer was revealed on being physical verification by Vikram Meghavani on 26.12.2014. On 19.01.2015, physical verification of the stock was carried out in presence of Rahul Meghavani and the authorized officer of the petitioner company and the quantity of the stock which was lying and available on the said date was 291 MT of 10:26:26 and 289 MT (20:20:0:12). The said H&T agency had delivered order by the petitioner company in the month of January/ February 2015. The intimation of stock was furnished to the Deputy Director- Agriculture by the petitioner company on the basis of report submitted by H&T agency. While the petitioner company had again approached the H&T agency for confirming the stock verification as submitted vide its letter dated 26.02.2015 and they informed the petitioner company that no stock was available with them.

5. He would also submit that the said H&T agency through its partner Vikram and Rahul Meghavani had embezzled and misappropriated the quantity of 390 MT fertilizer stock, which

were duly certified by one of the partners namely Rahul Meghavani on 26.02.2015. The price of the fertilizer is Rs. 82,13,490/- Thus, they have committed offence punishable under Sections 405, 406, 407, 409, 420, 467 & 120-B of I.P.C. as well as under Section 3/7 of the Act, 1955. The petitioner company lodged report before respondent No. 3 on 16.10.2015 (Annexure P/1) furnishing information to the Collector, since he is the authorized officer to initiate the action under the Act, 1955 and Superintendent of Police also, but no action has been taken by them against respondent No. 4 & 5.

6. Learned counsel for the petitioner would further submit that the complaint has been lodged under Sub-section (1) of Section 154 of the Cr.P.C. which discloses cognizable offence, then it is bounden duty of the police authority to register FIR against the accused persons. He would place reliance upon the judgment passed by Hon'ble Division Bench of this Court in Writ Appeal No. 228/2016 (Shyam Lal Navik & others Vs. State of Chhattisgarh & others) decided on 29.11.2016 & judgment passed by this Court in Writ Petition (Cr.) No. 09/2016 (Bhushan Singh Rathiya Vs. State of Chhattisgarh & others) decided on 26.08.2016.

7. The State has filed its return, in which, it has been stated that respondent No. 4 & 5 have also lodged complaint against Shahnawaj Khan, S/o Muthul Khan, who was Godown Supervisor for the last four years and when physical verification of fertilizer was done on 23.12.2014 by staff of godown supervisor at Lakholi Chowk was found correct, but upon physical verification of godown situated at Nandai Chowk, Rajnandgaon, 38 tone of IPC SCC; 50 tone of IPL SOP; 127 tone of IPL 11:44; 210 tone of Coromondol 10:26 and 180 tone of Coromondal 20:20:0:13 were found short and upon enqiury from said Shahnawaj Khan, who duly accepted that he had embezzled above said fertilizer and sold it in open market to different persons and he had received consideration amount and

the same was deposited in bank account of his family members and thereby committed criminal breach of trust. The total amount of embezzlement and theft was Rs. 1,01,10,2050/-. It was also mentioned in the written report that out of said amount, he had given Rs. 25,90,000/- cash and remaining Rs. 75,12,050/- was not given by him. He would further submit that the Police has investigated the matter and FIR No. 40/2015 has been registered against Shahnawaj Khan at Police Station- Basantpur, District- Rajnandgaon (C.G.) on 06.02.2015 (Annexure R/2) for committing offence punishable under Sections 381, 406, 420 of I.P.C. and Shahnawaj Khan has been arrested on 08.02.2015 and during course of investigation, the bank account of Shahnawaj Khan, his wife- Rukhmani Verma and son- Nikhil Verma were freezed by the bank on the request made by the investigating agency. He would also submit that the offence under Sections 381, 406, 420 of I.P.C. has already been registered against Shahnawaj Khan, which is pending before learned Judicial Magistrate First Class, and Shahnawaj Khan is actual culprit. Respondent No. 4 & 5 are the prosecution witnesses, therefore, it cannot be said that no action has been taken against the culprit. It has been further submitted that the petitioner company and partners of Dhanguru Road Carriers entered into an agreement and if there is any breach of any condition of the agreement, both the parties can file civil suit for recovery of loss suffered by them, because the dispute between them seems to be purely civil in nature, therefore, it is not desirable for the investigating authority to register FIR against respondent No. 4 & 5 and if the petitioner has any grievance, he can file separate petition before this Court and he can also avail the remedy under the Cr.P.C. As such, the present petition is liable to be dismissed.

8. Notice was issued to respondent No. 4 & 5, but no reply has been filed on their behalf.

9. Learned counsel for the petitioner has filed amendment

application contending that earlier respondent No. 4 & 5 were not arrayed as respondents in this writ petition, but subsequently the petitioner has filed an application for amendment in para 10 of prayer clause which was also allowed.

10. I have heard learned counsel for the parties and perused the records annexed with the petition.

11. From perusal of reliefs sought, it is quite clear that petitioner wants that on the basis of complaint, FIR should be registered against respondent No. 4- Vikram Meghavani & respondent No. 5- Rahul Meghavani.

12. Before adverting to the factual matrix of the case, it is necessary to examine the relevant provisions of the Order 1985, which are extracted below for convenience :-

"Section 6. Allocation of fertilisers to various States The Central Government may, with a view to securingequitable distribution and availability of fertilisers to the farmers in time, by notification in the Official Gazette, direct any manufacturer/importer to sell the fertilisers produced by him in such quantities and In such State or States and within such period as may be specified in the said notification. Section 19. Restriction on manufacture/import, sale and distribution of fertilisers No person shall himself or by any other person on his behalf:-(a) manufacture/import for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertlliser which Is not of prescribed standard;

(b) manufacture/Import for sale, sell, offer for sale, stock or exhibit for sale, or distribute any mixture of fertl11sers, which is not of prescribed standard** (subject to such limits of permissible variation as may be specified from time to time by the Central Government) or special mixture of fertilisers which does not conform to the particulars specified In the certificate of manufacture granted to him under this Order in respect of such special mixture.

(c) sell, offer for sale, stock or exhibit for sale or distribute:-

(i) any fertiliser the container whereof is not packed and marked in the manner laid down In

this Order

(ii) any fertiliser which is an [imitation of or] a substitute for another fertiliser under the name of which It Is sold;

(iii) Any fertilizer which is adulterated; Explanation:- A fertiliser shall be deemed to be adulterated, If It contains any substance the addition of which is likely to eliminate or decrease Its nutrient contents or make the fertiliser not conforming to the prescribed standard.

(iv) any fertiliser the label or container whereof bears the name of any individual firm or company purporting to be manufacturer/Importer of the fertiliser, which individual, firm or company Is fictitious or does not exsist.

(v) any fertiliser, the label or container whereof or anything accompanying therewith bears any statement which makes a false claim for the fertiliser of which s false or misleading in any material particular.

(vi) any substance as a fertiliser which substance is not, in fact, a fertiliser; or

(vii) any fertilizer without exhibiting the minimum guaranteed percentage by weight of plant nutrient.

Provided that specifications of city compost in Schedule IV shall, in case of municipalities, be applicable only when it is traded in packaged form for use in agriculture:

Provided further that the specifications of vermi-compost in Schedule IV shall be applicable only in such cases where it is sold in packaged form and for agricultural purposes.

35. Maintenance of records and submission of returns, etc. (1) The controller may by an order made in writing direct the dealers. manufacturers/ importers, and pool handling agencies:-

(a) to maintain such books of accounts, records, etc. relating to their business in Form 'N'. and

(b) to submit to such authority, returns and statements in such form and containing such information relating to their business and within such time as may be specified in that order.

(2) Where a person holds certificates of registration for retail sale and wholesale sale of fertilisers, he shall maintain separate books of accounts for these two types of sales made by him.

(3) Where a State Government, a manufacturer, an importer and a pool handling agency holds valid certificates of registration for sale of fertilisers in, wholesale or retail or both and also for sale for industrial use, he shall maintain separate books of accounts for these two or three types of sales made by him.

(4) Every importer shall inform the Director of Agriculture of the State in which he intends to discharge the imported fertilizer, under intimation to the Central Government, before the import is made or within a period of fifteen days after an indent for import is placed, the following details, namely ;-

(i) name of fertiliser

(ii) name of country of import.

(iii) name of manufacturer.

(iv) quantity to be imported

(v) date of arrival of the consignment.

(vi) name of the discharge port.

(vii) other information."

13. It is not in dispute that the fertilizer has been declared as essential commodity and their distribution and sale is governed under the Order 1985, but so far as contention of learned counsel for the petitioner that Collector should initiate action for registration of FIR against misappropriate of fertilizer by respondent No. 4 & 5, cannot be accepted as the petitioner company whose fertilizer has been embezzled, misappropriation of sale proceeds of the fertilizer, as such, they are the sufferers of illegal action alleged to have been committed by respondent No. 4 & 5, therefore, it is bounded duty of the company to take recourse of law to protect their interest and in fact they have already filed complaint against them for taking action against respondent No. 4 & 5 as is evident from Annexure P/1 dated 16.10.215 wherein he has stated as under:-

"14- blds iwoZ Hkh foØe ,oa jkgqy es?kokuh }kjk 01&06&2012 ls yxkrkj Stock verification dh ek=k ds vk/kkj ij

Godown charge fy, x, gSA mijksDr letter iwoZ esa foØe es?kokuh }kjk vius eSustj ds fo:) fd, x, FIR dks lafnX/k dj foØ[email protected] es?kokuh dh lafyIrrk fl) djrs gSa ftlds laca/k esa mijksDr izdj.k esa foospuk ugh dh xbZ gSA blds fy, daiuh i`Fkd ls vkosnu ekuuh; U;k;ky; ls le{k izLrqr dj jgh gSA 15- orZeku izLrqr f'kdk;r [email protected]Øe es?kokuh }kjk f'kdk;r drkZ daiuh ds 10%26%26 ,oa 20%20%0%13 moZjd ek=k Øe'k% 210 MT ,oa 180 MT gS] dqy ek=k 390 MT gS ,oa ftldh miyC/krk Lo;a [email protected]Øe es?kokuh }kjk izLrqr i= fnukad 19-01-2015 ,oa 26-02-2015 ls Hkh gksrh gS ,oa ftldk ewY; dqy :- 82]13]490-00 gS ds voS/k gsjk&[email protected]Ø; (misappropriation of fertilizer by fraud with conspiracy by Vikram and Rahul Meghvani) ds laca/k esa gSA 16- daiuh }kjk HkaMkfjr moZjd voS/k rjhds ls fofØr dj foØe ,oa jkgqy es?kokuh us moZjd fu;a=.k vkns'k 1985 dh /kkjk 8 ,oa vko';dr oLrq vf/kfu;e 1955 dh /kkjk 3 dk mYya?ku fd;k x;kA mudk ;g vijkf/kd d`R; Hkkjrh; naM lafgrk dh /kkjk 405] 406] 407, 409, 420] 467] 120 ch- Hkk-n- lafgrk 1860 lifBr /kkjk [email protected]] 9 vko';dr oLrq vf/kfu;e 1955 ds varxZr naMuh; gSA 16- ,slh fLFkfr esa foØe ,oa jkgqy es?kokuh }kjk fd, x, vkijkf/kd d`R; ds fy, Hkkjrh; naM lafgrk dh /kkjk 405] 406] 407] 409] 420] 467] 467] 120 ch Hkk-n- lafgrk 1860 lifBr /kkjk [email protected]] 9 vko';d oLrq vf/kfu;e 1955 ds varxZr vijk/k iathc) fd;k tk;A"

14. Learned counsel for the petitioner would mainly rely upon para 10 of the judgment rendered by Hon'ble Division Bench of this Court in Shyam Lal Navik (Supra) wherein it has been mentioned as under:-

"10. Sub-section (3) of Section 154 Cr.P.C. also lays down that in case the Officer-In-Charge of the Police Station has not lodged the FIR and the FIR is lodged on the complaint made to the Superintendent of Police or any other higher authority, then the said higher authority shall either investigate the case himself or direct investigation to be made by any police officer subordiante to him which obviously means that it would not be the police officers who had first refused to lodge the complaint. Therefore, we direct the Inspector General of Police, Ambikapur to ensure that the matter is investigated by an officer other than those In Charge of the PS Baikunthpur. "

15. From perusal of prayer clause, it is quite clear that the petitioner has filed the present petition for a direction to the police to

register FIR against respondent No. 4-Vikram Meghavani & respondent No. 5-Rahul Meghavani. Hon'ble the Supreme Court time and again deprecated filing of writ petition before High Court under Article 226 of the Constitution of India and directed that the complainant should file complaint under Section 200 of the Cr.P.C. for issuing a direction to the police to investigate on the complaint for registration of offence. The petitioner has the alternate remedy of filing complaint under Section 200 of the Cr.P.C. before Judicial Magistrate First Class, therefore, this writ petition is not maintainable before the High Court.

16. From perusal of Section 156 of the Cr.P.C., it is clear that the Magistrate may order for such investigation, if police officer is not investigating the cognizable offence. The Magistrate First Class, who is empowered under Section 190 of the Cr.P.C. can take cognizance of offence upon receiving a complaint, upon a police report of such facts or upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Section 200 of the Cr.P.C. provides for examination of complainant.

17. Since, the petitioner has remedy of filing the complaint under Section 156 (3) of the Cr.P.C. before the concerned Magistrate, the present writ petition is not maintainable. The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others1, has examined the issue in paragraphs 27 and 28, which are as under:-

"27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police.

For this grievance, the remedy lies under Section 36 1 (2008) 2 SCC 409

and 154 (3) before the concerned police officers, and if that is of no avail, under Section 156 (3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 2000 Cr.P.C. and not by filing a writ petition or a petition under Section Cr.P.C.

28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere."

18. The judgment passed by Hon'ble the Supreme Court in Sakiri Vasu (Supra) has again come up for consideration before three judges bench in case of M. Subramaniam & another Vs. S. Janaki & another2. The Supreme Court after considering the same judgment has held at para 7 & 9 which are as under:-

"7. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, in which it is observed: (SCC p. 278, paras 2-4) "2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156 (3) CrPC. If such an application under Section 156 (3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions 2 (2020) 16 SCC 728

and will not be able to do any other work except dealing with such writ petitions.

Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156 (3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156 (3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court."

9. In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18-09-2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest."

19. From analysis of the above legal provisions, it is crystal clear that the writ petition under Article 226 of the Constitution of India is not maintainable before the High Court. However, it is open to the petitioner to approach the court of Judicial Magistrate First

Class having territorial jurisdiction over the place of offence if it deemed appropriate and necessary for filing of complaint, and in-turn Magistrate will follow the procedure prescribed under the provisions of the Cr.P.C.

20. Considering the facts and materials on record and in light of the law laid down by Hon'ble the Supreme Court in the above referred judgments, the present writ petition filed under Article 226 of the Constitution of India, is disposed of with liberty to the petitioner to file complaint under Section 200 or 156 (3) of the Cr.P.C. before the court of Judicial Magistrate First Class having jurisdiction over the place of offence and in-turn Magistrate will follow the procedure prescribed under the provisions of the Cr.P.C.

21. The contention of learned counsel for the petitioner that the petitioner has filed complaint based on document dated 26.02.2015 whereas the FIR has been lodged against Supervisor of the godown Shahnawaj Khan on 06.02.2015, therefor, the respondent No. 1 & 2 are treating the present complainant for registration of FIR as second FIR for the same incident. This apprehension of the petitioner is not based on any foundation, as such, cannot be accepted. Though, the FIR for committing an offence under Section 381 & 406 has been registered against Shahnawaj Khan for misappropriation of fertilizer of the petitioner company and petitioner also intend to rope respondent No. 3 & 4 for committing the offence through its subsequent complaint. As such, there is no legal impediment to proceed in the complaint filed by the petitioner, at the best it can be directed to decide with analogous hearing with the criminal case filed against Shahnawaj Khan. Even if the trial Court while conducting the trial against Shahnawaj Khan, the Supervisor of the godown finds that respondent No. 3 & 4 are also involved in the commission of offence, the trial Court can very well exercise its power under Section 319 of the Cr.P.C. to initiate criminal trial against them also. Thus, the petitioner has another alternate

remedy available to him under the Cr.P.C.

22. It is made clear that this Court has not expressed any opinion on merits of the case whether the complaint discloses any criminal offence or not.

23. In view of the above, the instant writ petition is disposed of with the aforesaid liberty granted in favour of the petitioner. Learned trial Court is directed to expedite the proceeding and dispose of the case as early as possible.

Sd-

(Narendra Kumar Vyas) Judge

Arun