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2017 DIGILAW 1412 (HP)

Yeena Gupta v. State Of H. P.

2017-12-19

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral) - The petitioner herein instituted, a complaint, under the provisions of Section 156(3) Cr.P.C,, 1973 before, the learned Magistrate concerned. The learned Magistrate concerned pronounced thereon, an order for registration of an F.I.R., against, one Mohinder Nath Sofath, for his allegedly committing offences, under, Sections 420 and 406 IPC read with Section 34 I.P.C. The Investigating Officer, after, completing Investigations, filed, a report before the learned Court concerned, wherein he made proposal(s) for cancelling the apposite F.I.R. The learned Magistrate concerned, accepted, the proposal meted before him, by the Investigating Officer concerned. The reason for his accepting, the proposals made by the Investigating Officer, arose (i) from existence of a partnership agreement inter se one Veena Gupta and one Mohinder Nath Sofat, where-within, an arbitration clause No. 12 exists (ii) with echoing(s) therein of theirs ad-idem contracting to settle all contracted controversies erupting interse them, (iv) thereupon it, concluded, of the apposite arbitration clause, borne, in the apt agreement executed inter se Veena Gupta and one Mohinder Nath Sofat, rather warranting availment, by the aggrieved, (v) than her''s instituting criminal proceedings against one Mohinder Nath Sofat. Hence the complainant ascribing penal mis-demeanor(s) against, one Mohinder Nath Sofat, was dismissed, it being not maintainable. The complainant being aggrieved, by the pronouncement, made by the learned Judicial Magistrate concerned hence preferred a revision petition therefrom, before the revisional Court. However, the latter Court affirmed the order of the learned trial Court. The complainant being aggrieved, has instituted the instant petition under, Section 482 Cr. P.C., 1973 before this Court. The Hon''ble Apex Court has in a judgement reported in State of Orissa and others vs. Ujjal Kumar Burdhan (2012) 4 SCC 547 , relevant paragraphs whereof are extracted hereinafter:- "14. Further, the impugned order also notes that in view of the arbitration agreement between the agent and the Government, all the alleged violations fell within the purview of Arbitration and Conciliation Act, 1996 and therefore, the respondent could not be held liable for any criminal offence. This observation is against the well settled principle of law that the existence of an arbitration agreement cannot take the criminal acts out of the jurisdiction of the courts of law. On this aspect, in S.W, Palanitkar & Ors. vs. State of Bihar & Anr. This observation is against the well settled principle of law that the existence of an arbitration agreement cannot take the criminal acts out of the jurisdiction of the courts of law. On this aspect, in S.W, Palanitkar & Ors. vs. State of Bihar & Anr. (2002) 1 SCC 241 , this Court has echoed the following views: " 15- Looking to the complaint and the grievances made by the complainant therein and having regard to the agreement, it is clear that the dispute and grievances arise out of the said agreement. Clause 29 of the agreement provides for reference to arbitration in case of disputes or controversy between the parties and the said clause is wide enough to cover almost all sorts of disputes arising out of the agreement. As a matter of fact, it is also brought to our notice that the complainant issued a notice dated 3.10.1997 to the appellants invoking this arbitration clause claiming Rs. 15 lakhs. It is thereafter the present complaint was filed. For the alleged breach of the agreement in relation to commercial transaction, it is open to the Respondent 2 to proceed against the appellants for his redressal for recovery of money by way of damages for the loss caused, if any. Merely because there is an arbitration clause in the agreement, that cannot prevent criminal prosecution against the accused if an act constituting a criminal offence is made out even prima facie." (Emphasis supplied) emphatically rested the legal conundrum, qua maintainability(s), of criminal complaints against the contracting party concerned, arising, from breach of contract (b) especially when the apposite contract also embodies thereon an arbitration clause, for settling, all contracted dispute(s) erupting inter se Veena Gupta and Mohinder Nath Sofath and as arise from breach(s) of the apt contract. The empathetic pronouncement(s), made, in the apposite extracted paragraphs qua (b) dispute(s) qua breaches of contract, arising, inter se contracting parties also despite existence therein, of, an arbitration clause, not yet, snatching the rights of the aggrieved, to institute criminal proceeding(s) against the derelecting contracting party(s) concerned, hence constrain(s) this Court, to mete a deference thereto. 2. The empathetic pronouncement(s), made, in the apposite extracted paragraphs qua (b) dispute(s) qua breaches of contract, arising, inter se contracting parties also despite existence therein, of, an arbitration clause, not yet, snatching the rights of the aggrieved, to institute criminal proceeding(s) against the derelecting contracting party(s) concerned, hence constrain(s) this Court, to mete a deference thereto. 2. In the light of the above, the reason assigned, by the Courts below qua (i) with an arbitration clause, existing, in the relevant contract, executed inter se Veena Gupta and Mohinder Lal Sofat, with, portrayal(s) therein, of, breach(s) of contracts, being settleable besides resolvable, through, each availing the remedy(s) of arbitration (ii) and thereupon the aggrieved being barred to prosecute the derelicting party(s) thereof, is obviously frail. Since the aforesaid reasons, suffer, from a grave legal fallacy, hence the impugned order is set-aside. Revision petition is allowed. The learned trial Magistrate is directed, to, in accordance with law, render, direction(s) upon the I.O. concerned to (i) given investigation(s) thereon hence being not hold (ii) investigate alleged breach(es) of contract by one Mohinder Nath Sofat. (iii) and also to in accordance with law direct him, to furnish a status report before him AND thereafter pronounce an order in accordance with law. 3. Before parting upon an incisive scrutiny of the relevant case law, the only exception vis-a-vis there being no bar against simultaneity of, occurrence of criminal proceedings, AND of civil proceedings is (i) verdict(s) recorded by all statutory authorities concerned upon titles AND entitlements of the concerned qua property(ies) of any genre being binding upon criminal Courts, (ii) and continuation of criminal proceedings qua alike therewith subject matter or qua titles(s) or entitlements(s) vis-a-vis all property(ies) of any genre being impermissible, till a clinching conclusive verdict, emanates from the Apex Court (ii) Conspicuously, when verdicts of all statutory authorities concerned qua titles or entitlements vis-a-vis property(ies) of any genre, emanate, prior to commencement of criminal proceedings and before their termination. 4. The Registry is directed to forthwith circulate copies, of, this verdict, to all subordinate Courts and to all Superintendents of Police in Himachal Pradesh.