High Court Punjab-Haryana High Court

Vikrant Kumar And Others vs State Of Punjab And Another on 17 November, 2008

Punjab-Haryana High Court
Vikrant Kumar And Others vs State Of Punjab And Another on 17 November, 2008
                  Criminal Misc.No.6514-M of 2008.
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In the High Court of Punjab and Haryana at Chandigarh.

                   Criminal Misc.No.6514-M of 2008.

                   Date of decision:17-11-2008

Vikrant Kumar and others.

                                                     ...Petitioners.

            Versus

State of Punjab and another.

                                                     ...Respondents.

            ...

Coram:      Hon'ble Mr. Justice K. C. Puri.

            ...

Present:    Mr.Mansur Ali Advocate for the petitioners.

            Mr. K. S. Pannu, AAG Punjab.

            Mr. Vikas Kumar, Advocate for the complainant.

            ...

K. C. Puri, J.

Judgment.

In this petition filed under Section 482 Cr.P.C, the

petitioners seek quashing of FIR No.119 dated 24.4.2006, under

Sections 7 of the Essential Commodities Act and 420/120-B IPC,

registered at Police Station City, Abohar and all the subsequent

proceedings taken in pursuance thereof.

Criminal Misc.No.6514-M of 2008.

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Ram Parkash Jindal,complainant filed an application

before the Senior Superintendent of Police, Ferozepur for the

registration of a case against the petitioners on the allegations that

he was working as a wholesale dealer in the name and style of M/s.

Ram Parkash Ravi Nandan at Haqiqat Rai Chowk, Abohar. He was

also an authorized dealer of the National Fertilizers Limited, for

Abohar. Mahavir Dhaka is a Government servant in the National

Fertilizer Limited which is an authorized Government outlet,

having its head office at Delhi and is having 3 or 4 manufacturing

units of fertilizers in India,out of which there was one at Bhatinda.

He gets fertilizers from this Company from Bathinda for selling the

same to the farmers in Abohar and was further selling it to retail

dealers for which the Punjab Government issued licences/permits.

The Government gave huge subsidy on this fertilizer. All the

wholesale and retail dealers were to obtain a licence from the

manufacturing company and they keep the accounts also. He used

to get fertilizer through Mahavir Dhaka who was a Development

Officer in the National Fertilizer Limited, Abohar. While using his

official authority, Mahavir Dhaka supplied fertilizer directly to

accused No.2 Vikrant Kumar’s firm M/s Zamindara Pesticides &

Fertilizers while utilizing the name of his firm, at village Dodan

and Rajpura. The licence was obtained in the name of accused
Criminal Misc.No.6514-M of 2008.

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No.3 of Dalip Kumar son of Balram,resident of Doda. All the

above mentioned three persons have sold fertilizer to a Rajasthan

based firm M/s. S.S.Blow Chemicals & M/s. Jai Shiv Regent

Private Limited and as such they grabbed subsidy amount in lakhs,

by directly obtaining the fertilizer in the name of his firm

and,therefore, illegally obtained the fertilizer in the name of his

firm to cheat him and sold directly to the factory instead of

farmers. Mahavir Parshad Dhaka, in connivance with co-accused

Nos.2 and 4, in October 2004, directly sent 3000 bags which were

sent by the company to their firm. He kept on demanding money

from them again and again. Accused Nos.1,2 and 4 gave him

cheque of Rs.one lac each from Rajasthan Firm, for making a bill

in the name of their firm, Zamindara Pesticides & Fertilizers,

Rajpura. They also assured him that the cheques will be encashed

on presentation to the Bank. But these cheques were dishonoured

and accused No.2 closed his account in the Bank. One of the

cheques was got returned from the Bank by giving wrong

information to the police regarding one of the firms. Accused

Nos.2 and 4 were threatening to kill him instead of giving him

money.

On the basis of said application, the present FIR was

registered.

Criminal Misc.No.6514-M of 2008.

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The petitioners pray for quashing of the said FIR and

all the subsequent proceedings on various grounds on which he has

based his arguments which will be dealt with, hereinafter.

The learned counsel for the petitioners has submitted

that FIR was registered at the instance of Ram Parkash Jindal son

of Chiranji Lal who has stated that he was working as a wholesale

dealer in the name and style of M/s. Ram Parkash Ravi Nandan at

Abohar. He has further contended that he was an authorised dealer

of the National Fertilizers Limited for Abohar. Mahavir Dhaka is a

Government servant in the National Fertilizer Limited which is an

authorised Government outlet. It has been further mentioned in the

FIR that the Government gives subsidy for sale of fertilizer to the

farmers. Said Mahavir Dhaka who was a Development Officer in

the National Fertilizer Limited, Abohar supplied fertilizer directly

to accused No.2 Vikrant Kumar’s firm M/s Zamindara Pesticides &

Fertilizers while utilizing g the name of his firm, at villages

Dodan and Rajpura. The licence was obtained in the name of

accused No.3 i.e Dalip Kumar son of Balram, resident of Doda.All

these threes persons have sold the fertilizer to a Rajasthan based

firm M/s. S.S.Blow Chemicals & M/s. Jai Shiv Regent Private

Limited and as such they grabbed subsidy amount in lakhs, by

directly obtaining the fertilizer in the name of his firm and,
Criminal Misc.No.6514-M of 2008.

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therefore, illegally obtained fertilizer in the name of his firm to

cheat him and sold directly to the factory instead of farmers. It has

been further alleged in the FIR that Mahavir Dhaka, in connivance

with co-accused Nos.2 and 4, directly sent 3000 bags in October,

2004, which were sent by the company to their firm.

It is further contended that so far as accused Mahavir

Dhaka is concerned, he was not posted at Abohar at the relevant

time. He has further contended that M/s. National Fertilizer has not

been arrayed as an accused. M/s. National Fertilizer Limited is a

State run company. Not even a single bag can be taken out from

the company without counting the same. The allegations against

him are simply on account of his relations with the other accused.

It has been further contended that so far as the case

against other accused is concerned, the same is also not proved.

There was no reason for the petitioners to sell the fertilizer at

Rajasthan after incurring huge expenditure on transportation. In

fact, the complainant owed money to the petitioners and

proceedings under Section 138 of the Negotiable Instruments Act

are pending against him. It is only on account of that dispute that

the present FIR has been lodged against the petitioners. The

lodging of FIR is a clear abuse of the process of the Court. Mere

fact that some transaction had been done in M/s S.S.Blow
Criminal Misc.No.6514-M of 2008.

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Chemicals and M/s. Jai Shiv Regent Private Limited does not

prove the case of the complainant. For summoning of a person,

strong prima-facie case is to be made out as summoning of a

person as an accused is a serious matter affecting life and liberty

of that person.

It has been further contended that even if the entire

allegations against the petitioner No.4, Mahavir Dhaka that he

supplied the fertilizer in discharge of his duty as a public servant

are taken on their face value, no proceedings regarding the said act

can be taken without sanction under Section 197 Cr.P.C. There is

no sanction against petitioner No.4. The complaint is liable to be

quashed on this ground also.

On the other hand, the counsel for the complainant has

submitted that the complaint is not the result of any malice but the

fact remains that huge subsidy is given on the fertilizer and that

subsidy is meant for farmers. There was no reason for petitioner

Nos.1 to 3 to sell the fertilizer at a firm at Rajasthan. So, there is a

clear cut case of cheating. This fact can only be established, during

the course of trial. The petitioner No.4 has supplied fertilizer to

petitioner Nos.1 to 3 and, on that count, he is also criminally liable.

It has been further contended that charge against the petitioners has

been framed and in view of authority in case Minakshi Bala
Criminal Misc.No.6514-M of 2008.

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Versus Sudhir Kumar, 1994(3) Recent Criminal Reports 123, no

ground for interference is made out. He has also relied upon

authority in case State of Madhya Pradesh Versus Awadh

Kishore Gupta and others, 2004(1) Recent Criminal Reports

(Criminal) 233.

The counsel for the petitioners has relied upon authority

in case Dr. Monica Kumar and another Versus State of U.P

and others, 2008(3) Recent Criminal Reports (Criminal) 548 and

has submitted that proceedings were quashed by the Hon’ble

Supreme Court by holding that any prohibition or restriction

contained in ordinary laws cannot act as a limitation on the

constitutional power of this Court if such a case is made out.

Framing of charge does not debar the Court to quash the

proceedings.

I have carefully considered the submissions made by

both sides and have gone through the record of the case.

There are two sets of accused, in the present case. The

first set of accused is petitioner Nos.1 to 3 and the allegations

against them are that they have directly received fertilizer from the

National Fertilizer Company instead of rooting through the

complainant. It is alleged that the complainant is the whole-sale

dealer and no direct sale can be made to the petitioners.

Criminal Misc.No.6514-M of 2008.

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The other allegation is that petitioner Nos.1 to 3 have

sold the fertilizer to M/s. S.S.Blow Chemicals & M/s. Jai Shiv

Regent Private Limited in Rajasthan. The necessary record, in this

regard, has been placed on the file.

The fertilizer is a highly subsidized article and the

Government spends thousands of crores as subsidy on fertilizer

enabling the farmers to get the fertilizer at cheap rates so that they

may grow more grain which, in turn, shall be invested for the

advancement of the country. The submission made by the counsel

for the petitioners is to the effect that the petitioners would have

spent money on carriage to Rajasthan cannot be appreciated at this

stage as there is huge profit on the actual cost of fertilizer and its

subsidized rates. So, that argument can only be appreciated, during

the course of trial.

Prima-facie evidence collected by the police shows that

sale has been made to a firm in Rajasthan, as detailed in the FIR,

by petitioner Nos.1 to 3. Proceedings under Section 482 Cr.P.C can

only be invoked in case uncontroverted allegations made in the

FIR or in the complaint and the evidence collected in support of

the same did not disclose commission of any offence but, in respect

of petitioner Nos.1 to 3, that fact is missing. It cannot be held that

the entire allegations, if taken on their face value, would not
Criminal Misc.No.6514-M of 2008.

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constitute any offence against petitioner Nos.1 to 3. In authority in

case Minakshi Bala (supra), is concerned, it was held that where

the police, after completion of investigation, submitted the challan

and the Court took cognizance. The trial Court also framed charge.

In that situation, unless a strong case of abuse of the process of the

Court is made out, the provisions of Section 482 Cr.P.C cannot be

invoked.

In authority in case State of Madhya Pradesh (supra),

the Hon’ble Apex Court has laid down the circumstances under

which the provisions of Section 482 Cr.P.C can be invoked. The

case of the petitioners does not fall within any of the provisions of

section 482 Cr.P.C.

Therefore, the petition filed by petitioner Nos.1 to 3

stands dismissed.

So far as accused/petitioner No.4 is concerned, the

allegations against him that he supplied fertilizer directly to the

accused/petitioner Nos.1 to 3 instead of selling the same to the

complainant. Specific allegation against him is that on 8.4.2004, he

supplied 3000 bags directly to petitioner Nos.1 to 3. Reliance has

been placed on Annexure R-5 which is consolidated statement of

supply of fertilizer from 1.4.2004 to 30.9.2004. The statement is

stated to have been signed by the said petitioner. There is no
Criminal Misc.No.6514-M of 2008.

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evidence on the file that Mahavir Dhaka was posted in the said

office on 8.4.2004. Moreover, no other officer of the National

Fertilizers has been made party. The National Fertilizer is a

concern duly controlled by the Government and not even a single

bag can be taken out from the said manufacturing concern without

counting the same. So, supply of 3000 bags on 8.4.2004 cannot be

attributed to petitioner No.4. Otherwise also, petitioner No.4 is

stated to have supplied fertilizer in due discharge of his duty.

Without sanction against him under Section 197 Cr.P.C for

prosecution, no prosecution can be launched against him. On this

ground also, criminal proceedings against him cannot continue.

So, in view of above discussion, the FIR in question qua

Mahavir Dhaka and further proceedings pursuant to that FIR,

against Mahavir Dhaka stand quashed.

In the final analysis, the petition filed by petitioner

Nos.1 to 3 stands dismissed. However, the FIR and further

proceedings pursuant to that FIR against Mahavir Dhaka,

petitioner No.4, stand quashed.


November 17th ,2008.                    ( K. C. Puri )
Jaggi                                         Judge