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2013 DIGILAW 271 (JHR)

J. J. Irani v. State of Jharkhand

2013-02-22

D.N.UPADHYAY

body2013
ORDER This Cr. M.P. has been filed for quashing the order dated 19.6.2001, whereby and whereunder, cognizance of the offence under Sections 403, 406, 420 and 120-B of the Indian Penal Code has been taken against the petitioner by the C.J.M. Bokaro in C.P. Case No. 11 of 2001. 2. The brief fact appearing from the complaint is that Bokaro Steel Plant, a unit of Steel Authority of India Limited (for short SAIL) awarded a contract to M/s. Tata Iron & Steel Co. Ltd. (for short, TISCO), Growth Shop for certain works. TISCO Growth Shop completed supply part of the work and erection, part of the work was entrusted by it to M/s. Tata Construction & Projects Ltd. (for short TCPL). It is disclosed that TCPL in turn issued tender enquiry and awarded the work to M/s. Singh Construction Co., the complainant. It is alleged that after completion of the work the complainant demanded payment of the balance amount under the contract from TCPL. But the accused Nos. 2 and 3, the then Managing Director and President of TCPL have failed to clear the dues, when the complainant did not receive the payment for the work done by him, he felt himself cheated and lodged this complaint. After holding the enquiry, the petitioner and other accused were directed to face trial for offences punishable under Sections 403, 406, 420 and 120-B, IPC. 3. It is submitted on behalf of petitioner that there was no contract between TISCO and the present complainant and therefore, the petitioner is not responsible for violation of any terms and conditions or for misappropriation of any amount, if it is done by TCPL with whom the complainant company entered into a contract. It is desirable to mention that initially, the contract was given by SAIL to TISCO. The TISCO performed part of the work and for completion of the rest of the work, TCPL was authorized, who invited tender and given job to the present complainant. It is desirable to mention that initially, the contract was given by SAIL to TISCO. The TISCO performed part of the work and for completion of the rest of the work, TCPL was authorized, who invited tender and given job to the present complainant. The Hon'ble Supreme Court in Criminal Appeal No. 70 of 2003 arising out of SLP (CRL) No. 2654 of 2002 with Criminal Appeal No. 71 of 2003 arising out of SLP (CRL) No. 2698 of 2002 vide order dated 20.1.2003 set aside the order dated 19.6.2001 passed in Complaint Case No. 11 of 2001 after having discussion on the facts and circumstances as well as the law applicable in this regard. The same order has been challenged in this criminal miscellaneous petition by the petitioner who is figured as accused No. 1 in this complaint. The case of the present petitioner is on much better footing than those of accused Nos. 2 and 3 who were the Managing Director and President of TCPL with whom the complainant had an agreement. 4. On the other hand learned counsel appearing for the complainant-opposite party No.2 has opposed the prayer and submitted that TCPL is non-else but a firm created by TISCO Ltd. of which the petitioner was the then Managing Director. He has also pointed out that the contract money was received by TISCO Ltd. from SAIL and therefore the petitioner cannot escape from the liability. 5. I have gone through the judgment passed by the Supreme Court in the criminal appeals referred to above. The Apex Court has made it very clear in the said order and observed that- “.........The Courts below have overlooked the fact that the contract between Bokaro Steel (a unit of SAIL) and TCPL is a separate and independent contract. The contract between complainant and TCPL is altogether a different contract. The contractual obligations under both the contracts are separate and independent of each other. The rights and obligations of the parties i.e. the complainant and TCPL are to be governed by the contract between them for which the contract between TCPL and Bokaro Steel (SAIL) has no relevance. Therefore even if Bokaro Steel has made the payment to TCPL under its contract with the latter it will not give rise to plea of misappropriation of motley because that money is not money or movable property of the complainant. Therefore even if Bokaro Steel has made the payment to TCPL under its contract with the latter it will not give rise to plea of misappropriation of motley because that money is not money or movable property of the complainant. Further Section 403 uses the words 'dishonestly' and 'misappropriate'. These are necessary ingredients of an offence under Section 403, IPC. Neither of these ingredients are satisfied in the facts and circumstances of the case. In para 14 of the complaint, the complainant has stated as under: "...Release of payments to complainant was never depended on the payment released by Bokaro Steel Plant a Unit of SAIL to TISCO Growth Shop and TCFL." Thus admittedly, the two contracts are independent of each other and payment under one has no relevance qua the other. It cannot be said that there is any dishonest intention on tile part of appellants nor it can be said that TCPL or the appellants have misappropriated or converted the movable property of the complainant to their own use. Since the basic ingredients of the relevant Section in the Indian Penal Code are not satisfied the order taking cognizance of the offence as well as the issue of summons to the appellants is wholly uncalled for......" 6. Thus it is clear that there is no contract between TISCO Ltd., and the present complainant and therefore, question of cheating and misappropriation of the property does not arise at all. 7. In the result this Cr. M.P. stands allowed and the impugned order dated 19.6.2001 passed in Complaint Case No. 11 of 2001 stands quashed and accordingly, the criminal prosecution arising out of Complaint Case No. 11 of 2001 also stands quashed. In view of above, all the LAs. filed in this case also stands disposed of. I.As. disposed of.