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
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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,
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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
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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
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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