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2018 DIGILAW 2132 (PNJ)

Anil Kumar Aggarwal v. State of Punjab

2018-05-10

MAHABIR SINGH SINDHU

body2018
JUDGMENT : Mahabir Singh Sindhu, J. Present petition has been filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the petitioner in case FIR No.92 dated 10.11.2017, under Sections 406 & 420 IPC, registered at Police Station Sadar Gurdaspur, District Gurdaspur. 2. It is contended by learned counsel for the petitioner that no offence under Sections 406 and 420 IPC is made out against the petitioner as the dispute is civil in nature in view of the agreement dated 09.12.2013 (P-5) entered between the parties. It is further contended that although the petitioner is one of the Directors of Sri Nangli Rice Mills Pvt. Ltd., but he has not signed the agreement in question. It is further submitted that the stock was in the custody of National Bulk Handling Corporation Ltd.-respondent No.2 and as such the petitioner cannot be blamed if there is any alleged short-comings in the quality of the commodities. It is also contended that in view of the clause 3.1 and 3.2 of the agreement dated 09.12.2013 (P-5) the petitioner is not responsible if the quality is not of same nature as mentioned in the agreement and it is for the respondent No.2 who has been handed over the possession of the commodities/stock in the warehouse to take care about the custody of the same. 3. On the other hand, learned counsel for the complainant-respondent No.2 has opposed the contentions of learned counsel for the petitioner on the ground that admittedly the petitioner is a Director of the Company, namely, Sri Nangli Rice Mills Pvt. Ltd. against whom the agreement in question was executed and there is an acknowledgment by the Company that in case the warehouse commodities are pre-stacked in the warehouse, then respondent No.2 can carry out only a limited destocking and re-stacking of the commodities or its quantity and quality with the declaration by the client. It is also submitted that the Company has duly acknowledged and confirmed that it shall always make true and correct representation to respondent No.2 that the commodities destacked by respondent No.2 for verification purposes are the accurate representative of the entire group of commodities pre-stacked and the company duly agreed to indemnify respondent No.2 and reference is made to Clauses 3.12 and 3.13 of the agreement. It is further submitted that the Company has disclosed that the entire quality of rice is PUSA 1121 and the reference is made to declaration forms, receipts as well as test reports (R-2/5 (Colly.). It is further argued that there are two other FIRs i.e. RCBD1/2018/E/0004 dated 27.03.2018 (R-2/1) and FIR No.RCBD1/2018/E/005 dated 27.03.2018 (R-2/2), registered at Police Station CBI, BS&FC, New Delhi, pending against the petitioner along with Company and which clearly show that the petitioner is habitual in defrauding the other Banks and Government agencies also. 4. Heard learned counsel for the parties and perused the paper-book. 5. Precisely, the accusation against the petitioner is that a loan of `25 crores (Rupees Twenty Five Crores) was sanctioned to Shri Nangli Rice Mills Pvt. Ltd. by State Bank of Patiala against the pledge of rice and paddy stock in godown. It is further alleged that since the loan sanctioned by the State Bank of Patiala was long overdue and the Bank proceeded for public auction of the pledged stock and the public announcement was made on 08.12.2016, which resulted in a bidding on 19.12.2016. Thereafter, the Bank gave a release order in favour of the highest bidder on 26.12.2016 and when the bidder came to take the delivery of the Commodity and started lifting the stock, the same was found inferior in nature. It is further alleged that 3760 bags of rice were inferior in quality which has caused estimated loss of `72-73 lacs. Consequently, the complainant-respondent No.2 lodged an FIR against the accused. 6. Before proceeding with the matter, it is necessary to reproduce Clauses 3.12 and 3.13 of the agreement (P-5) and the same reads as under:- “3.12 The client hereby acknowledges that in case where the commodities are pre-stacked in the warehouse, NBHC can carry out only a limited de-stacking and restacking of the Commodities for verification, of quantity and quality of the commodities, with the declarations by the client. Further, the client also acknowledges and confirms that it shall always make true and correct representation to NBHC that the Commodities de-stacked by NBHC for verification purposes are the accurate representative of the entire group of Commodities. In this regard the Client agrees and undertakes to indemnify and keep fully indemnified the bank and/or NBHC from any claims, losses, damages, charges etc. In this regard the Client agrees and undertakes to indemnify and keep fully indemnified the bank and/or NBHC from any claims, losses, damages, charges etc. that Bank and/or NBHC may incur in case if the representations made by the client of, the quantity of the Commodities is found short, or the quality/grade of the Commodities is found to be false/incorrect, or if the part of the commodities are found to be spurious. 3.13 The Client further acknowledges that, in case the Commodities are deposited by the Client subsequent to acquisition of possession of the Warehouse by NBHC under this Agreement, NBHC can only carry out a random sampling for verification, of quantity and quality of the Commodities with the declarations by the Client. Further, the Client also representations to NBHC that the samples of the Commodities collected by NBHC for verification purposes are the accurate representative of the entire group of Commodities. The Client hereby agrees and undertakes to indemnify and keep full indemnified the bank and/or NBHC from any claims, losses, damages, charges etc. that Bank and/or NBHC may incur in case if the representations made by the client of, the quantity of the Commodities is found short, or the quality/grade of the Commodities is found to be false/incorrect, or if the part of the commodities are found to be spurious.” 7. Perusal of both the clauses reproduced hereinabove make it apparently clear that the Company has duly acknowledged that in case the Commodities are pre-stacked in the warehouse, NBHC/respondent No.2 can carry out only a limited de-stacking and re-stacking of the Commodities for verification of quantity and quality of the Commodities with the declaration by the Company and it shall always make true and correct representations to NBHC/respondent No.2 that the Commodities de-stacked by NBHC/respondent No.2 for verification purposes are the accurate representative of the entire group of Commodities. It is further made clear that the Company has undertaken to indemnify the Bank or NHBC from any claims, losses, damages, charges etc. in case the quantity or quality or grade of the Commodities is found to be short, false and incorrect respectively and even if the part of the Commodities is found to be spurious. It is further made clear that the Company has undertaken to indemnify the Bank or NHBC from any claims, losses, damages, charges etc. in case the quantity or quality or grade of the Commodities is found to be short, false and incorrect respectively and even if the part of the Commodities is found to be spurious. Further it has been acknowledged by the Company that subsequent to acquisition of possession of the Warehouse by the NBHC under the Agreement, it (NBHC) can only carry out a random sampling for verification of quantity and quality of the Commodities with the declarations by the Company and the Company further agreed that the Commodities are the accurate representatives of the entire group of Company and in case the representation made by the Company regarding quantity or quality or grade is found to be short, false or incorrect or the part of the Commodities found to be spurious, then the Company shall indemnify the NBHC. 8. A cumulative reading of Clauses 3.12 and 3.13 of the agreement as well as declaration Forms (R-2/5) make it abundantly clear that the Company being client made a declaration that the Commodities stocked is rice steam PUSA 1121 grade, but on checking the same was not found to be correct, rather this is a spurious quality of rice. Meaning thereby, very direct and serious allegations of cheating and criminal breach of trust regarding the indicated Commodities are levelled against the petitioner as well. In this manner, prima facie, there is sufficient material to show the complicity of the petitioner in the commission of offences in question. 9. Moreover, law is well settled that the order of pre-arrest bail cannot be allowed in a routine manner and to circumvent normal procedure of arrest, recovery of case property from the accused and investigation by the police. The Court has also to see that the investigation is in the province of the police and an order of anticipatory bail should not operate as an in-road into the statutory powers of the police, in exercising the judicial discretion in granting the anticipatory bail in such level of fraud regarding public funds and properties. 10. The Court has also to see that the investigation is in the province of the police and an order of anticipatory bail should not operate as an in-road into the statutory powers of the police, in exercising the judicial discretion in granting the anticipatory bail in such level of fraud regarding public funds and properties. 10. In view of above factual position and taking into consideration the gravity of the offences and the fact that the petitioner and other Directors are facing two other criminal cases registered by the CBI, the petitioner is not entitled to concession of pre-arrest bail and his custodial interrogation is necessary, in order to ascertain his role and for bringing the true facts on record. Thus, this Court does not find any merit in the present petition and the same is hereby dismissed. 11. The above observations may not be construed as an expression of opinion on merits of the case.