Judgment The petitioners are the Accused in Crime No.209 of 2010 pending on the file of the first respondent and they have come forward with this petition to quash the FIR against them. 2. The second respondent/Defacto Complainant filed a complaint against the petitioners on the file of the first respondent. In the complaint it is alleged that MAN Rollo Power Generation India Private Limited, approached the complainant claiming that MAN Rollo, Netherland who are alleged to be authorised sellers of MAN Germany made Gas Engines in India are their Principal and joint venture company. By sustained efforts and canvassing they obtained purchase orders. Later, they gave a false information that MAN Rollo, Power Generation India Private Limited was to be merged with M/s.Power Engineering India Private Limited, an Indian Company and would become non-existent. To convince the complainant they showed a letter purported to have been issued by MAN Germany to the effect that M/s. Power Engineering India Private Limited is their dealer for sales and service of Man Germany made Gas Engines in India. Bu dubious methods MAN Rollo, Power Generation India Private Limited got transferred the purchase order and original agreement, through a tripartite agreement to Power Engineering India Private Limited handled by the first petitioner originally signed the purchase agreement in the capacity of authorised signatory of MAN Rollo, Power Generation India Private Limited. With full knowledge that they are not going to supply the Gensets, MAN Rollo, Power Generation India Private Limited represented by the first accused canvassed, gave false assurances and to gain our confidence that MAN Rollo, Netherlands is the principal and joint venture company of MAN Rollo, Power Generation India Private Limited, the first accused booked the order and collected huge money as advance from the complainant and made the complainant invest further for this project by giving false promises, assurances and information for the supply of 8 numbers of Bio-gas gensets to be supplied in two phases, each phase for 4 numbers of gensets at a cost of Rs.3,39,72,400/- and received advance of Rs.61,60,000/-for 8 gensets on 19.08.2009. 3. An agreement dated 19.8.2009 was entered into between the defacto complainant and a company under the name and style of Man Rollo Power Generation India Pvt. Ltd., for supply of 8 gensets with auxillaries. 3. An agreement dated 19.8.2009 was entered into between the defacto complainant and a company under the name and style of Man Rollo Power Generation India Pvt. Ltd., for supply of 8 gensets with auxillaries. The petitioners gave false information that the board of their company has decided M/s. Man Rollo Power Generation India Pvt. Ltd., will be merged with M/s. Power Engineering Pvt., Ltd., Goa, an Indian Company and MRPGIPL will become non existent. In this regard they entered a Tripartite agreement on 17.01.2010 at Chennai by producing an authorization letter said to be issued by Man Nutzfathrzeuge AG. Germany. The complainant gave post dated cheque dated 05.04.2010 for Rs.31,72,400/-to M/s. Power Engineering Pvt. Ltd., Goa for excise duty. After receiving the cheque the petitioners company supplied four numbers of MAN bio gas engines with accessories. Before installing the Bio Gas Gensets at Salem it was noticed that some of the vital equipments were not supplied and due to short supply of materials the commissioning of the gensets failed. The complainant gave discrepancy acceptance letter to the concerned State Bank of India for releasing the amount by which the petitioners company received the first Letter of Credit amount of Rs.2,49,48,000/-. As per the agreement the second Letter of Credit 10% value of Rs.27,72,000/-has already been opened by the defacto complainant/second respondent in favour of the petitioners which encashable after successful commissioning and proving the agreed performance test by the petitioners. Since they have not commissioned the genset supplied they have not money for this Letter of Credit. But Letter of Credit is with petitioners. The petitioners/accused have supplied four Bio-gas gensets to the complainant company without proper equipments to commission the project. Hence the defacto complainant sustained huge loss of Rs.11.62 crores which become dead capital. 4. The petitioners raised forgery and false invoices for materials not supplied to get money from the complainant through Letter of Credit. When the forgery of the invoice was found out, they gave false assurances and attractive guarantee with time schedule to supply the non supplied items and caused the complainant recommend to the Bank to release the Letter of Credit money of 2.49 crores including the value of non supplied important items and electronics without these components the Genset is unusable and no market value. After getting money, the petitioners turned back, failed to supply the non supplied items and commission the project rendering the entire investment for the power project made by the complainant a dead capital thereby causing wrongful loss and mental agony to the complainant and his company's investors. Hence, the complainant has preferred the said complaint and pursuant to the order passed by this Court in Crl.O.P.No.27542 of 2010 dated 14.12.2010, FIR was registered by the first respondent in Crime No.209 of 2010 against the petitioners for the offence under Section 420 r/w 34 of IPC. Against which the petitioners have come forward with this petition. 5. The first contention raised by the learned senior counsel appearing for the petitioners/accused is that by giving wrong information to the Court by saying that it is a Government Scheme and as if some irregularities had happened and in such a way the Criminal Original Petition has been filed and order has been obtained suppressing the fact and on that basis only FIR has been registered. Hence, on the ground of suppression of fact the complaint has to be thrown out. 6. The next contention raised by the learned senior counsel for the petitioners is that the petitioners have supplied Gensets only as per the specifications in the MOU, still there is a balance and if at all any breach of agreement has been made, it has to be questioned only by way of civil suit and not by way of criminal complaint. Hence, the complaint has to be quashed. 7. The first contention raised by the learned senior counsel appearing for the second respondent/complainant is that it is a sponsored scheme for which documents have been produced and on satisfying with the said documents this Court has given direction to the first respondent to register the complaint. Hence, there is no suppression of material facts in this case. Hence, he prays that the quash petition has to be dismissed. 8. The second contention raised by the learned senior counsel for the second respondent/complainant is that admittedly the petitioners have received 90% of the agreed amount for supply of Gensets. Whereas, they have supplied four Gensets without proper equipments to commission the project and due to short supply of materials the commissioning of the gensets failed. Hence the defacto complainant sustained huge loss of Rs.11.62 crores which become dead capital. Whereas, they have supplied four Gensets without proper equipments to commission the project and due to short supply of materials the commissioning of the gensets failed. Hence the defacto complainant sustained huge loss of Rs.11.62 crores which become dead capital. Hence, he prays that the petition has to be dismissed. 9. The learned Government Advocate (Crl.side) appearing for the first respondent contended that the grounds agitated by the petitioners to quash the FIR cannot be considered by this Court at this stage and it has to be decided only after investigation. Hence he prays that the petition has to be dismissed. 10. Heard the rival submissions and perused the materials placed on record. 11. The first ground agitated by the learned senior counsel appearing for the petitioners/accused is that by giving wrong information to the Court by saying that it is a Government Scheme and as if some irregularities had happened and in such a way the Criminal Original Petition has been filed and order has been obtained by suppressing the fact and FIR has been registered. From the perusal of the records it is seen that the complainant has filed a petition in Crl.O.P.No.27542 of 2010 for a direction to the Director General of Police, Tamil Nadu, Chennai to register a case upon the complaint dated 06.10.2010 and pursue follow up action in accordance with law and this Court by order dated 14.12.2010 disposed of the said petition. It is relevant to extract para 2 of the said order, which runs as follows: "2. Learned Senior counsel submits that crores of rupees have been cheated by the proposed accused on a Government Project. A complaint has been given to the respondents and they have not initiated any action." On that basis, this Court has directed the Central Crime Branch, to investigate and register an FIR if any cognizable offence is made out and it is also made clear that if the Central Crime Branch feels it fit that the investigation may be handled by any other agency, the Commissioner of Police, Chennai is directed to forward the complaint to CBCID. On that basis FIR has been registered by the Central Crime Branch. 12. On that basis FIR has been registered by the Central Crime Branch. 12. The contention of the learned senior counsel appearing for the second respondent/complainant is that this project is a Central Government Project and only after commencement of the project they are entitled to claim subsidy for their company. Hence, they mentioned it as it is a Government Project. Therefore, there is no suppression or wrong representation has been made before this Court. 13. From the perusal of the MOU said to have entered into between the parties on 19.8.2009 as well as the Tripartite Agreement entered into between the parties on 17.10.2010 it has been mentioned that after commencing the power project and after commencing production of power the second respondent/complainant is entitled for the subsidy from the Government of India. Since it is mentioned as a Government Project, no doubt after commencing the said project the Government will sanction subsidy to the complainant. Therefore, there is no suppression or wrong representation has been made by the complainant before this Court. Hence, I am of the view that there is no force in the contention raised by the learned senior counsel appearing for the petitioners/accused and I reject the said contention. 14. The next ground agitated by the learned senior counsel appearing for the petitioners is that as per the agreement dated 19.8.2009 the petitioners company supplied four numbers of MAN bio gas engines with accessories to the complainant. Under such circumstances, after delivering the goods, there is no question of cheating arise and if at all any breach of contract, the complainant has to file a civil suit for such breach of contract or for specific performance of the agreement. In respect of the civil dispute criminal complaint filed by the complainant against the petitioners is not maintainable. Hence, he prays that the complaint against the petitioners has to be quashed. 15. The learned senior counsel appearing for the respondent/complainant contended that there was an agreement entered into between the defacto complainant and a company under the name and style of Man Rollo Power Generation India Pvt. Ltd., for supply of 8 gensets with auxillaries. The petitioners company had received advance of Rs.61,60,000/- for 4 gensets on 19.09.2009 and the entire amount has been received by them except the amount towards payment of tax and Excise, which alone are due, since they have not prepared the bill. The petitioners company had received advance of Rs.61,60,000/- for 4 gensets on 19.09.2009 and the entire amount has been received by them except the amount towards payment of tax and Excise, which alone are due, since they have not prepared the bill. Though the petitioners company supplied four numbers of MAN bio gas engines with accessories, before installing the Bio Gas Gensets at Salem it was noticed that some of the vital equipments were not supplied and due to short supply of materials the commissioning of the gensets failed. Under such circumstances, the machineries have not been commissioned. On the last hearing they made inspection and even during such inspection they found that certain axially equipments for commissioning the project has to be supplied, they have not extended the warranty and guarantee. Though the petitioners have received the entire amount and they have supplied 4 gensets at the site of the second respondent/complainant due to short supply of certain vital equipments the machineires have not been commissioned. Hence, the learned senior counsel for the second respondent/defacto Complainant prays that the petition has to be dismissed. 16. It is not in dispute that first agreement has been entered into between the parties on 19.8.2009 and thereafter, Tripartite Agreement has been entered into between three parties on 17.10.2010 wherein the complainant is the First Part, the petitioners/accused viz., are the Second Part and the Power Engineering (India) Private Limited is the Third Part. The complainant entered into the said agreement for purchase of 8 Gen sets and as per the said agreement the petitioners agreed to supply the first 4 Gensets with Auxilliaries to the complainant by 10th December 2009 and the next 4 Gensets with Auxilliaries by March 2010. The complainant paid an amount of Rs.61,60,000/-to MAN ROLLO company as advance/part payment towards its obligations under the contract. It is relevant to extract the statement of transaction which runs as hereunder: For 1st 4 Gas Gensets Values Total Total Invoice Value Rs.3,08,00,000.00 Add ED @ 10.3% Rs. 31,72,400.00 Add CST @ 2% Rs. 6,79,448.00 'C' Form not submitted-Diff. Rs. 35,67,102.00 Total Receivable Rs. 3,82,18,950.00 Material short supplied Rs. 14,19,200.00 Hence value of material supplied Rs. 3,67,99,750.00 Advance Rs. 30,80,000.00 Payment Received 1st LC Rs.2,49,48,000.00 Total Received Rs.2,80,28,000.00 Balance to be Received Rs. 87,71,750.00 17. 31,72,400.00 Add CST @ 2% Rs. 6,79,448.00 'C' Form not submitted-Diff. Rs. 35,67,102.00 Total Receivable Rs. 3,82,18,950.00 Material short supplied Rs. 14,19,200.00 Hence value of material supplied Rs. 3,67,99,750.00 Advance Rs. 30,80,000.00 Payment Received 1st LC Rs.2,49,48,000.00 Total Received Rs.2,80,28,000.00 Balance to be Received Rs. 87,71,750.00 17. There is no dispute with regard to the above payments made by the second respondent/complainant to the petitioners/accused. There is also no dispute with regard to the delivery of 4 Gen sets to the place of the second respondent/complainant. The dispute is only with regard to the non supply of some of the vital equipments which resulted the commissioning of the work has not been commenced. Under this juncture, the contention of the learned senior counsel appearing for the second respondent/complainant is that as per the first agreement dated 19.8.2009 the second respondent/complainant had placed order to Man Rollo Power Generation India Pvt. Ltd., for supply of 4 gensets with auxillaries. As per the Tripartite Agreement dated 17.10.2010 MAN Nutzfahizeuge AG, Germany has supplied the gensets directly to the petitioners/Accused Company, instead of placing the same in the name of the second respondent/complainant company. Because of this, the second respondent/complainant company could not get the benefits of subsidy from the Government of India as well as the warranty from the MAN Nutzfahizeuge AG, Germany who has supplied the gensets directly to the petitioners/Accused Company. From this it is very clear that the petitioners have not supplied the gensets as agreed by them, in spite of entire payment has been received by them. Further, even though the petitioners have supplied four gensets because of non supply of vital equipments the complainant could not commission the machineries. The petitioners have not taken proper steps to commission the machineries. Due to that, the respondent/complainant could not get subsidy from the Government of India and as well as the amount advanced by the respondent/complainant to the petitioners for purchase of gensets also has become idle. 18. From the perusal of the documents it seen that two agreements have been entered and further the petitioners/accused placed orders on behalf of the second respondent/complainant which resulted in the second respondent/complainant company could not get the benefits of subsidy from the Government of India as well as the warranty from the MAN Nutzfahizeuge AG, Germany who has supplied the gensets directly to the petitioners/Accused Company. Further one has to see the terms of the contract. Whether the MAN Rollo, Power Generation India Private Limited has been merged with M/s.Power Engineering India Private Limited, an Indian Company has to be seen only after the investigation. This cumulative aspect has to be appreciated only after investigation. The investigation has to be allowed to continue further. Further, unless the investigation is allowed at this stage one cannot decide this. Admittedly, the petitioners/accused have received the entire amount for the supply of 4 gensets and they have supplied 4 gensets at the place of the second respondent/complainant. Whereas, as per the MOU gensets have not been commissioned due to non supply of some of the vital equipments. Further, warranty or guarantee has not been given to the second respondent/complainant. That itself is prima facie sufficient to hold that the case against the petitioners/accused is made out. Regarding the arbitration clause and other question will not have to be allowed to continue further. Hence, I am of the view that all these small aspects have to be decided only after investigation and at this stage this Court is not inclined to quash the FIR against the petitioners. 19. This Criminal Original Petition is dismissed. Since already two years have been elapsed, the first respondent is directed to proceed with the investigation and file final report expeditiously.