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2018 DIGILAW 302 (RAJ)

Gaurav Hargovindbhai Dave v. State of Rajasthan

2018-01-23

SANDEEP MEHTA

body2018
JUDGMENT & ORDER : Mr. Sandeep Mehta, J. 1. Heard learned counsel for the petitioner, learned Public Prosecutor assisted by the Investigating Officer and learned counsel for the complainant respondent No. 2. Perused the material available on record. 2. By way of this petition under Section 482 Cr.P.C., the petitioner herein has approached this Court for assailing the F.I.R. No. 283/2016 registered at the Police Station Balotra, District Barmer for the offences under Sections 420, 409 and 120B of I.P.C. 3. Facts in brief are that a contract was entered into between the petitioner i.e. M/s. Shivam Water Treaters Pvt. Ltd. being the contractor and the respondent No. 2 complainant being the owner of an industrial unit named Vinod Industries of Balotra on 14.10.2015 with the object and purpose of setting up a 600 KLD effluent treatment plant at the industrial unit of the complainant. The essential and relevant terms of the contract which are germane for deciding the controversy at hand are reproduced here-in-below for the sake of ready reference: "Payment Terms for Turnkey Contract 25% advance along with purchase order, 25% against submission of G.A. drawing for the project within 1 week time, 30% after order date within 2 weeks time, 15% against inspection held at our work prior to dispatch, 05% against successful erection & commissioning of the plant." Payment upon Termination If the Contract is terminated because of a fundamental breach of Contract by the Contractor, the VI will issue a certificate for the value of the work done less advance payments received up to the date of the issue of the certificate, less other recoveries due in terms of the contract, less taxes due to be deducted at source as per applicable law and less the percentage to apply to the work not completed. Additional Liquidated Damages will not apply. If the total amount due to the VI exceeds any payment due to the Contractor the difference will be a recoverable to the VI. Additional Liquidated Damages will not apply. If the total amount due to the VI exceeds any payment due to the Contractor the difference will be a recoverable to the VI. If the Contract is terminated at the VI's convenience or because of a fundamental breach of Contract by the VI, the Engineer will issue a certificate for the value of the work done, the reasonable cost of removal of Equipment, repatriation of the Contractor's personnel employed solely on the Works, and the Contractor's costs of protecting and securing the Works and less advance payments received up to the date of the certificate, less other recoveries due in terms of the contract and less taxes due to be deducted at source as per applicable law." 4. The contract was signed by the complainant Vinod Kothari and Vishal Dave on behalf of the contractor. It is an admitted case as emerging from record that the complainant paid a sum of Rs. 1,11,000/- to the contractor as advance on 17.10.2015. Thereafter, various sums of money totalling to Rs. 1,36,74,365/- were paid by the complainant against 8 invoices raised by the contractor between 22.2.2016 to 4.4.2016. However, it is alleged that despite receiving payment of this huge amount, the contractor bluntly refused to set up the effluent treatment plant in terms of the agreement and thereupon, the complainant approached the accused persons with two witnesses named Ashok Kumar and Sawai Singh on 11.6.2016 at their Narol Factory and requested them to complete the job at the settled rate of Rs. 1,60,00,000/- but the accused out rightly refuted this proposal conveying that they never intended to carry out the work for the amount settled in the contract and that the plant would be commissioned only if the complainant coughed up an additional sum of Rs. 1,25,00,000/-. The accused also refused to repay the amount paid by the complainant to them upon which, the complainant returned empty handed to Jasol. 1,25,00,000/-. The accused also refused to repay the amount paid by the complainant to them upon which, the complainant returned empty handed to Jasol. A complaint with these allegations came to be filed by the respondent No. 2 complainant on 30.6.2016 in the court of the learned ACJM, Balotra and was forwarded to the Police Station Balotra for investigation under Section 156(3) Cr.P.C. where, the above F.I.R. No. 283/2016 came to be registered against the present petitioner Gaurav Hargovind, being the Chairman of the Shivam Water Treaters Pvt. Ltd., Ami Gorav Dave being its Manager and Vishal Dave being the Development Head and the company M/s. Shivam Water Treaters Pvt. Ltd. for the offences under Sections 420, 409 and 120B of I.P.C. The petitioner has approached this Court by way of the instant misc. petition under Section 482 Cr.P.C. seeking quashing of entire proceedings of the impugned F.I.R. 5. Learned counsel Shri Vikas Balia vehemently urged that the contractor (accused), admittedly supplied equipment and machinery valued at Rs. 1,36,00,000/- at the work site but the complainant failed to part with the remaining amount as per the terms settled between the parties under the contract and that is why, the effluent treatment plant could not be completed and commissioned. He urged that the malicious intention of the complainant in lodging the F.I.R. is writ large on the face of the record because not even a semblance of allegation is made in the F.I.R. that the remaining amount was offered to the accused and despite that, refused to execute the contract. Further, no written notice of the alleged breach of contract was served upon the accused by the complainant. He urged that the complainant has intentionally created and concocted oral evidence before lodging the bogus F.I.R. with the oblique motive of converting a dispute of purely civil nature to a malicious criminal prosecution. He further urged that as a matter of fact, the entire responsibility of breaching the terms and conditions of the contract fell upon the complainant and in accordance with the settled terms of termination referred to supra, the accused contractor is entitled to receive compensation and the complainant is liable to bear the brunt of the expenses of removal of equipments, repatriation of the contract etc. As per Shri Balia, it is only to escape these costs bearing down on the complainant who failed to comply with the terms of the contract, that the instant frivolous F.I.R. came to be filed against the petitioner company with absolutely fabricated allegations. He thus implored the Court to exercise its inherent powers and to quash the impugned F.I.R. at the inception as the same amounts to a gross abuse of process of law. 6. Per contra, the learned Public Prosecutor assisted by the Investigating Officer and Shri Pradeep Shah learned counsel representing the complainant vehemently opposed the submissions advanced by Shri Balia. They urged that as a matter of fact, the questioned invoices running into nearly 1.38 crore of rupees raised by the accused were totally fictitious as no machinery or equipment or parts were ever received by the complainant there against. However, the complainant honoured the same in good faith as the parties were having a long standing business relationship. The accused failed to provide any proof of transportation of the goods billed under the disputed invoices. They thus implored the Court to dismiss the instant misc. petition. However, upon a pertinent query being put by the Court, neither Shri Shah nor the learned Public Prosecutor were able to dispute the fact that in the entire F.I.R. and in the statement of the complainant, there is no allegation that the goods against which, the invoices referred to supra were raised and payments were made, were not received by the complainant. It is also not in disputed that the complainant never issued any written notice etc. to the accused for its failure to adhere to the terms and conditions of the contract despite receiving the part payment thereof or for raising bogus and fake invoices. 7. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and have gone through the material available on record. 8. It being virtually an admitted position as emerging from record that the complainant has not questioned the veracity of the 8 invoices referred to supra either in the detailed F.I.R. or in his statement recorded u/s. 161 Cr.P.C. No allegation was levelled by the complainant at any stage that he did not receive the equipment, machinery etc. against which, these invoices were raised. Thus manifestly, it has to be presumed that goods and machinery worth about Rs. against which, these invoices were raised. Thus manifestly, it has to be presumed that goods and machinery worth about Rs. 1.38 crores for which these invoices were raised by the accused and honoured by the complainant, were actually delivered. Failure of the accused to provide evidence about mode of transportation cannot be of significance in view of the fact that the complainant himself has not raised an issue regarding the goods having not been received at his end. It is also not in dispute that as per the payment terms settled between the parties, only 5% from the total sum of Rs. 1,60,00,000/- was payable to the accused finally upon successful erection and commissioning of the plant and 95% of the contract amount was payable before hand. Admittedly, the amount paid by the complainant to the accused does not even come anywhere near 95% share of the total expenditure required to be paid to the accused before erection and commissioning of the Effluent Treatment Plant at the site. Thus, manifestly, the complainant has initiated a purely vindictive and malicious criminal proceeding against the accused in a simple case of breach of contract which arose because of his own failure to abide by the terms and conditions thereof. Failure of the complainant in making any written or electronic communication with the accused for ventilating the grievances regarding the non-performance of obligations under the contract also indicates that the complainant has tried to create a mountain out of a mole hill while lodging the complaint and has blatantly misused the process of criminal law. Considered in light of the admitted facts and circumstances emanating from record, manifestly, the case involves a simple dispute of breach of contract and no ingredients of the offences alleged are made out from the highest case set up by the complainant in his F.I.R. 9. In view of above discussion, I am of the firm opinion that allowing proceedings of the impugned F.I.R. to be continued against the accused would amount to a gross abuse of process of law. 10. Accordingly, the misc. petition deserves to be and is hereby allowed. The impugned F.I.R. No. 283/2016 registered at the Police Station Balotra, District Barmer for the offences under Sections 420, 409 and 120B of I.P.C. and all consequential proceedings sought to be taken there under are hereby quashed.