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Gauhati High Court · body

2001 DIGILAW 135 (GAU)

T. S. Rajmoni v. Randip Barua

2001-05-17

P.G.AGARWAL

body2001
Heard Mr. P. Borthakur, learned "counsel for-the petitioner and Mr. JM Choudhury, learned counsel for the respondents. 2. This application under section 482, CrPC has been filed by the petitioner Shri TS Rajmoni praying for quashing of Complaint Case No. 188c/93 pending in the Court of Chief Judicial Magistrate, Kamrup, Guwahati. 3. Complaint Case No. 188c/93 was filed by the respondent complaint alleging inter alia that agreement was executed between the complaint and the accused company to fabricate design and supply machinery, erect and commission Cement Plant at Hundung in East Manipur District. The total value of the contract was initially at Rs. 85 lakhs and subsequently it was raised to Rs. 116.25 lakhs. The complainant company made certain payment; but the work was not executed. However the accused company dishonestly induced the complainant company to believe that the project would be completed as per the agreement and the complainant company believing on such inducement parted with huge amount of money; but the accused person had some dishonest intention and after receiving the money they have failed to complete their part of the contract. 4. Learned counsel for the petitioner submits that it is purely a civil dispute between the parties and the agreement entered into between the parties contained clause (J) regarding arbitration. It is further submitted that as a matter of fact a civil suit was instituted by the complainant being Title Suit (Arb) 188 of 1987 and the said suit was disposed of vide order dated 17.11.87 by the Assistant District Judge No.l, Guwahati. It is therefore submitted that the present proceeding is a mere abuse of the process of Court and as such the complainant case should be quashed. Learned counsel for the respondent on the other hand has referred to the contents of para 11 of the complaint petition which read as follows : "11. That the complainant begs to state the accused company informed the complainant company that they have kept ready some of the machineries worth Rs. 14,51,1617- in their godown and accordingly the complainant informed the accused company to keep in their godown under safe custody for the purpose of inspection of the machineries. The accused company submitted proforma bills for the said machineries and accordingly the payments were made. 14,51,1617- in their godown and accordingly the complainant informed the accused company to keep in their godown under safe custody for the purpose of inspection of the machineries. The accused company submitted proforma bills for the said machineries and accordingly the payments were made. But after sometime when the representative of the complainant company went to inspect, the machineries the representatives was surprised to find that the machineries have been shifted and sold by the accused company without the knowledge of the complaint company. This Act on the part of the accused company is clearly a fraudulent act which amount to cheating under section 420 of the Indian Penal Code." 5. The law is well settled that a complaint case can be quashed only when the complaint petition does not disclose commission of any criminal offence or the facts mentioned in the complaint petition do not constitute ingredients of the offence. In the present case there is specific allegation that the accused company made representation that the machineries are ready for delivery and also submitted proforma bills against which the complainant company released payments. But when the complainant company went to inspect and take deli very of the goods, they found that the machineries have been shifted and sold out to some other persons. The above allegations no doubt constituted an offence under section 420 IPC. 6. As regards the submission that the matter is of civil nature and existence of arbitration clause in the case of Trisuns Chemical Industry vs. Rajesh Agarwal & others reported in (1999) 8 SCC 686 , the Apex Court observed: "7. Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Mariana vs. Baja All and Rajesh Baja vs. State NOT of Delhi). 8. In this last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations : (SCC 263, para 10) "10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. We quote the following observations : (SCC 263, para 10) "10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions." 9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution- when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the Arbitrator cannot conduct a trial of any act which amounted to an offence albeit the a same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Preemption of such investigation would be justified only in very extreme cases as indicated in State of Haryana vs. Bhajan Lal." 7. Learned counsel for the petitioner further submits that in this case there is delay of five years in lodging the complaint. The effect of delay in lodging the complaint can be considered during trial only and a complaint petition cannot be thrown out at the threshold and that too in a revision petition. The question of delay depends on the facts and circumstances of the case and it is to be appreciated in proper perspective only. 8. In view of the specific allegation, contained in para 11 of the complaint petition as quoted above, I find that this is not a fit case for exercising jurisdiction under section 482, Cr PC to quash the proceeding. The revision petition is accordingly dismissed. The trial Magistrate is directed to proceed with the trial in accordance with law. Petitioner will be at liberty to raise the question of limitation d etc of any at the time of trial.