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Punjab High Court · body

2019 DIGILAW 1107 (PNJ)

RAJIV SHARMA v. U. T. CHANDIGARH

2019-04-08

INDERJIT SINGH

body2019
JUDGMENT : Inderjit Singh, J. All the above-mentioned cases are taken up together as these have arisen from same FIR. 2. The petitioners have filed these petitions under Section 482 Cr.P.C. for quashing FIR No.203 dated 09.09.2011 under Sections 420 and 120-B IPC, registered at Police Station Industrial Area, Chandigarh along with all the consequential proceedings. 3. Notice of motion was issued. Learned Addl. Public Prosecutor for U.T. Chandigarh as well as learned counsel for respondent No.2 appeared and contested the petitions. Though, none has put in appearance on behalf of petitioner Mahavir Singh, but as the point for determination in all the cases is the same, therefore, his petition is also being decided with other cases. 4. From the record, I find that in the present case, FIR has been got registered by complainant Arvind Pal Singh Chawala against the petitioners under Sections 420 and 120-B IPC. The contents of the FIR are as under:- "To the SSP HQ. U.T. Chandigarh (UT) subject request for registration of case for breach of trust/cheating, forgery by way of criminal conspriacy against Mahabir Singh (Director) M/s Anchal Engineering Pvt. Ltd., Anirvan Singh Prop. M/s Advance Retail, Harjit Singh Prop. M/s G.R.D. Engineering and officer of Dena Bank Sector 7, Chandigarh and Sector 11, Panchakula namely Mrs. Neelam, Mr. S.S. Rawat, Mrs. Deepika and Mr. Waryam Singh for the reason mentioned below. Sir I beg to submit as under : - 1. That earlier M/s Anchal Engineering Pvt. Ltd. And M/s Nidhan Overases Pvt. Ltd. had some small dealing of business for the last about two years prior to August 2009. Mr. Mahabir Singh, M/s Anchal Engineering Pvt. Ltd. Somewhere at the end of July/beginning of August 2009 approached the undersined at his office at 8 MW Indl. Area Phase I, Chandigarh stating that he was having very good offer of gainful business of supplying stainless stell railing with installing work at Common Wealth game village New Delhi and also he had offer of supplying LG display racks for different showroom situated all over the country. He further disclosed that he had an offer of another gainful business of supply of canopies with assembly of the same at the sites at different places but he did not have funds to go for. He further disclosed that he had an offer of another gainful business of supply of canopies with assembly of the same at the sites at different places but he did not have funds to go for. He suggested to the undersigned that if he could invest if the orders could be taken in their names as undersigned lacks enough funds to go for it and further he assured that since that undersgined concern would be new to this job he would do the job of manufacturing, supplying and installing of stainless steel railings LG display racks and genset canopies and he could settle the terms firstly, the complainant company was reluctant as the work was quite new for them and there was no certainly of gains. Mr. Mahavir Singh who was accompanied by one another person (name not known) explained the plan of work stating that M/s Advance Retails owned by Sh. Anirvan Singh Delhi well known to him wanted to hire the services of some one who could finance the procurement supply of stainless steel railings and LG display racks with intallation at the respective sites and one other party M/s GRD Engineering owned by Harjit Singh who needed the supply of genset canopies with assembly use the site and Mahavir Singh further ensured the responsibilities and sincereity concerning the undersigned that he was awarded that the complainant company did not know of the technicalities of work and further it would be quite difficult for them to be at Delhi all the times to carry out but since he himself was going to gain out of this supply and installation of the material he would be devoting himself with sincereity, also stated that both the aforesaid parties were already known to him. He had been working for them and the risk of any loss was going to be narrow (taking further end) to the undersigned in these circumstances of such assurance compelled the undersigned to go ahead with the work. 2. I APS Chawla undersigned Director M/s Nidhan Overases Pvt. Ltd. 8 MW Indl. He had been working for them and the risk of any loss was going to be narrow (taking further end) to the undersigned in these circumstances of such assurance compelled the undersigned to go ahead with the work. 2. I APS Chawla undersigned Director M/s Nidhan Overases Pvt. Ltd. 8 MW Indl. Area Phase I Chandigarh on behalf of the above referred company entered into an agreement in nature but supported by complete document so supply and install stainless steel railing and LG Display Racks for M/s Advance Retails B-294, Ashok Nagar Mayur Vihar I New Delhi who had taken his contract from M/s Ahluwalia Builders New Delhi for the common wealth games to start in October, 2010. The copies of the their purchase orders of M/s Advance Retail are attached as Annexure A-1. 3. At that same time M/s Advance Overases Pvt. Ltd. through the undersigned entered into an agreement with M/s GRD Engineering 232-F, Bgghera, Gurgaon xxx. Road Gurgaon through its proprietor House No.95/B single Storey Ramesh Nagar New Delhi 15 to supply the Gen Set copies. The copy of purchase order of M/s GRD Engineering is attached as Annexure A-3. The undersigned engaged M/s Anchal Engineering Pvt. Ltd. VPO Malpura, Charshera District Rewari, Haryana through its Director Mahavir Singh R/o House No.XXX Block C-2, Pritam vihar, Gurgaon 122001 to supply and install the stainless steel railing in Common Wealth Games and LG Display racks all over xxx all over the country. The undersigned also made arrangement with M/s Anchal Engineering Pvt. Ltd. to purchase Gen Set from M/s GRD Engineering Gurgaon with assembling at the site. The copies of purchase order is attached as Annexure A-III. 5. The mode of payment of the supply and installation of stainless steel railing LG display racks and genset Canopies by M/s Nidhan Overseas Pvt. Ltd. To M/s Anchal Engineering Pvt. Ltd. Through letter of credit through Dena Bank Sector 7-C, Chandigarh running under the control of regional office of Dena Bank Sector 11, Panchkula in favour of M/s Anchal Engineering Pvt. Ltd. The total cost of purchase and intallation of stainless steel railing was Rs.81.60 lacs and that of LG display rack was Rs.28,53,249/- and that of genset canopies of Rs.40,13,826/-. The total payment to be made by M/s Anchal Engineering Pvt. Ltd. Becomes to Rs.2,50,27,568/-. The total payment to be made by M/s Anchal Engineering Pvt. Ltd. Becomes to Rs.2,50,27,568/-. Payment got released by M/s Anchal Engineering Pvt. Ltd. to the extent of Rs.xxx lacs. This matter confines to the bank record and details are attached as Annexure IV. For the convenience of M/s Anchal Engineering Pvt. Ltd. the company of the undersigned opened seven letters of credits with terms and conditions incorporated with the same in Dena Bank Sector 7, Chandigarh in favour of M/s Anchal Engineering Pvt. Ltd., to enable them to get release the amounts against the supply and installation of the material from time to time in the running work. Without complying and required terms and conditions Dena Bank had no authority to release the payment M/s Anchal Engineering Pvt. Limited without compliance of the terms and conditions as incorporated in the said seven letter of credits. The copies of seven letter of credits are attached as Annexure-V. The procedure for getting released the money from Dena Bank Sector 7 Chandigarh was that at the time documents mentioned in the letter of credit were needed to be submitted to Dena Bank by M/s Anchal Engineering Pvt. Limited through its bank and Dena Bank after checking and satisfying itself of their correctness as per terms and conditions laid down in the letter of credit to release the payment. The said terms and conditions contained in the LC required the following documents to be furnished by M/s Anchal Engineering Private Limited. 1. Signed commercial invoice- Two Copies 2. Packing List-Two Copies 3. Receipt of goods issued and signed by M/s Nidhan Overseas Pvt. Ltd., representative two copies (iv) certificate of supplies in duplicate that the material supplied of confirms to the buyers samples and as per the terms and conditions of purchase order. (v) inspection certificate issued by M/s Nidhan Overseas representative at the work site. The work at the requisite site at Delhi of supply and installation of stainless steel railing and LG Display racks was started in the month of August 2009 and continued till March, 2010, the stipulated period for completion of the work. The supply of genset canopies with its assembling at the site of M/s GRD Engineering started at Gurgaon on October, 2009 and it continued till 31.03.2010, the stipulated period of completion. 8. The supply of genset canopies with its assembling at the site of M/s GRD Engineering started at Gurgaon on October, 2009 and it continued till 31.03.2010, the stipulated period of completion. 8. The company of the undersigned got installed steel railing at the site of M/s Advance Retail and also got installed LG display racks at the requisite place as instructed by M/s Advance Retail through M/s Anchal Engineering Pvt. Ltd. As per the undersigned as given in the purchase order placed with M/s Anchal Engineering Pvt. Ltd. In view of the requirement of M/s Advance retail the total payment received by the undersigned company was supply of materials and work done and its installation were Rs.2,27,29,924/- but only an amount of Rs.1,58,75,000/- has been received. The genset canopies were also got supplied and install from M/s Anchal Engineering Pvt. Ltd. as per the purchase order placed with it by the company of the undersigned at the site of M/s GRD Engineering as its requirement exhibited with the company of the undersigned. The total payment to be received from M/s GRD Engineering against supply and installation Genset canopies becomes Rs.42,55,495/- whereas only an amount of Rs.24,00,000/- (Rs. Twenty Four Lacs) was received and its proprietor Harjit vanish from the spot of work by removing all its material and later on it is learnt that he has stored his material in the premises of M/s Anchal Engineering Pvt. Ltd. And directly and indirectly working with it. 9. To reconcile of the work done the complainant company sent email to M/s Advance retail on 03.04.2010 giving details of the work done and payments received from them mentioning the balance of payment to be made by them to the complainant company and in reply to the same M/s Advance retail sent email on 06.04.2010 indicating short supply of material and the work done asking the complainant company to check it with Mahavir Singh of M/s Anchal Engineering Pvt. Ltd. In this respect. Both the emails were then forwarded to M/s Anchal Engineering Pvt. Ltd. To check its record and the work done by it regarding supply of stainless steel railing and LG display racks and installations. Both the emails were then forwarded to M/s Anchal Engineering Pvt. Ltd. To check its record and the work done by it regarding supply of stainless steel railing and LG display racks and installations. However Mahavir Singh remained motionless and did not bother to give reply to other emails received on 20.04.2010 and 23.04.2010 from M/s Advance retail stating that their work was not done in the manner it was to be done and they pointed out the short coming in the supply of material and installation work. It was also required in the email that the work be completed as per specification and in case of default the penalty shall be imposed work shall be cancelled and it shall be got from other source. The copies of email and exchanged with M/s Advance retails are attached as Annexure 6. At the same time, the complainant company sent email to Harjit Singh Prop M/s GRD Engineering to confirm the supply and installation of genset canopies by supplying the details and at the first instance in the email sent by Harjit Singh on 12.04.2010 he admitted the supply of entire material of genset canopies but later on verbally conveyed that material against the last two invoices was not received through M/s Anchal Engineering Pvt. Ltd. As a result of this the complainant comany contacted M/s Anchal Engineering Pvt. Ltd. But he remained evasive. The copy of M/s GRD Engineering is attached as Annexure 7. 10. As per the complaint, both the objections raised by M/s Advance Retail and M/s GRD Engineering the undersigned has to the matter that the payment is too late and had got against the claim of work having been done by M/s Anchal Engineering Pvt. Ltd., it may be worth mentioning that if the following four payments had also been released as under the first payment of Rs.40 lacs in the month of October, 2009, second payment of Rs.40 lacs in the month of November 2010 and third payment of Rs.20 lacs in the month of February 2010 and fourth payment of Rs.30 lacs in the month of March 2010. It is evident that the undersigned stand cheated for all site by M/s Advance Retails who did not make the payment of all the work done by supply of matter and installation. It is evident that the undersigned stand cheated for all site by M/s Advance Retails who did not make the payment of all the work done by supply of matter and installation. M/s GRD Engineering who did not make the payment of all the work done of supply of material and installations. M/s Advance Engineering Pvt. Ltd. who did not do the work done and got released the payment by conniving conspiracy of Dena Bank which is clear from the documentary evidence mentioned below. 11. Looking towards the criminal attitude of the above said persons the undersigned started making in writing various enquiries against various places to catch hold of the tricks and tracrious committed by these persons and as a result of that the undersigned came to know of the same which is as under- (I) fifth payment of Rs.30 lacs in the month of April 2010, sixth payment of Rs.30 Lacs in the month of May 2010 were got released by M/s Anchal Engineering Pvt. Ltd. whereas the release of first four payments letter of credits got released from Dena Bank were in order as the requisite documents submitted by M/s Anchal Engineering Pvt. Ltd. with the bank were as per the terms and conditions and the last two release of payments in the year 2010 were against the terms and conditions but these were got released by M/s Anchal Engineering Pvt. Ltd. in connivance of official of Dena Bank Sector 7, Chandigarh and regional office of Dena Bank situated at Sector 11, Panchkula. Such payments were facilitated by conspiracy by M/s Anchal Engineering Pvt. Ltd. his bank, Oriental Bank of Commerce Sector 17, Gurgaon and Dena Bank Sector 7, Chandigarh in connivance with regional Bank Sector 11, Panchkula. Such payments were facilitated by conspiracy by M/s Anchal Engineering Pvt. Ltd. his bank, Oriental Bank of Commerce Sector 17, Gurgaon and Dena Bank Sector 7, Chandigarh in connivance with regional Bank Sector 11, Panchkula. (ii) Further to surprise and shock of the undersigned the fraudulent doing of aforesaid persons in conspiracy with each other was found in the manner that some of the bills were supplied for the material were made in the triplicate and some were in duplicate and being in the name of undersigned company and the other being in the name of M/s Advance Retail and this came into the hands of the undersigned when the matter was opened by the Central Excise Department Delhi situated at Gurgaon and it was found that even some of the bills issued in the name of undersigned company were not mentioned in written submitted by M/s Anchal Engineering Pvt. Ltd., the letter from Central Excise Department is attacked as Annexure 8. The details collected so far upto this stage are as under :- Triplicate Bill No.135 dated 29.09.2009 issued in the name of (i) Nidhan Overseas (ii) Advance retails, (iii) KMG International intimidate to sale tax department amount by KMG International (B) bill No.142 dated 11.10.2009 issued by Nidhan Overseas Pvtd. Ltd, (b) Advance Retain (c) M.K. Diesel intermediation to Sale Tax Department only M.K. Diesel. (C) Bill No.183 dated 17.12.2009 issued in favour of M/s Nidhan Overseas Pvt. Ltd. (D) Advance Retail intimated to sale tax department only M.K. Diesel Duplicate bill (a) Bill No.117 dated 28.08.2009 issued in the name of Nidhan Overseas (b) Advance retail only Advance Retail (b) Bill No.118 dated 27.08.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance Retail Intimation to Sale Tax Department only M/s Advance Retails (c) Bill No.119 issued in the name of Nidhan Overseas (d) M/s Advance Retails intimated to sale tax department only M/s Advance Retail, (d) Bill No.0134 dated 18.09.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimation to sale tax department only Nidhan Overseas. (e) Bill No.137 dated 24.09.2009 issued in the name of Nidhan Overseas (e) M/s Advance retails intimation to sale department only Nidhan Overseas (f) Bill No.139 dated 04.10.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Nidhan Overseas. (e) Bill No.137 dated 24.09.2009 issued in the name of Nidhan Overseas (e) M/s Advance retails intimation to sale department only Nidhan Overseas (f) Bill No.139 dated 04.10.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Nidhan Overseas. (G) Bill No.140 dated 07.10.2009 issued in the name of (a) Nidhan Overseas b) M/s Advance retail intimated to sale tax department only M/s Nidhan overseas. (H) Bill No.144 dated 14.10.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Advance Retail. (I) Bill No.152 dated 05.11.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Advance Retail. (J) Bill No.141 dated 09.10.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Advance Retail. K) Bill No.142 dated 12.10.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Nidhan Overseas. (L) Bill 148 dated 01.11.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Advance Retail. (M) Bill No.154 dated 06.11.2009 issued in the name of (a) Nidhan Overseas (b) M/s KMG International intimated to sale tax department only M/s KMG International. (N) Bill No.187 dated 21.12.2009 issued in the name of (a) Nidhan Overseas (b) M/s MK Auto intimated to sale tax department only M/s MK Auto. (O) Bill No.188 dated 23.12.2009 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Advance Retail. (P) Bill No.235 dated 08.03.2010 issued in the name of (a) Nidhan Overseas (b) M/s Advance retail intimated to sale tax department only M/s Advance retail. Bill not intimated to the sale tax department. (A) Bill No.184 dated 19.12.2009 (B) Bill No.215 dated 05.02.2010 (C) Bill No.217 dated 08.02.2010. (D) Bill No.219 dated 10.02.2010 (E) Bill No.238 dated 11.03.2010 (F) Bill No.239 dated 12.03.2010. Details of invoices of the M/s Anchal Engineering Pvt. Ltd. as per sale tax return as attached as Annexure IX. 12. From the facts stated above it is clear that Mahavir Singh, Anirbhan Singh and Harjit Singh were known to each other. (D) Bill No.219 dated 10.02.2010 (E) Bill No.238 dated 11.03.2010 (F) Bill No.239 dated 12.03.2010. Details of invoices of the M/s Anchal Engineering Pvt. Ltd. as per sale tax return as attached as Annexure IX. 12. From the facts stated above it is clear that Mahavir Singh, Anirbhan Singh and Harjit Singh were known to each other. The undersigned was contacted and they contacted the undersigned after hatching the criminal conspiracy to cheat the company of the undersigned in the manner mentioned above and further they joined hands with the official of the Dena Bank namely Mrs. R.C. Rawat, Mrs. Deepika, Warhyam Singh and an officer Mrs. Neelam Dena Bank Panchkula in getting the payment released illegally. 13. The undersigned had to approach the Civil Court at Chandigarh to restrain Dena Bank Chandigarh and Panchkula from releasing the remaining amount to M/s Anchal Engineering Pvt. Ltd. on account of the fraud committed with the company of the undersigned. It may be out of place to mention here that the offence of cheating and offence of forgery of documents stated already committed by the accused persons by entering into criminal conspiracy. The above said civil suit presented simply to restrain the release of further amount illegally. The matter prima facie of criminal nature due to the offences committed are cognizable. The matter supported by documents. The copy of the Court order is attached as Annexure X. 14. The negotiation for work took place at Chandigarh the work order was placed at Chandigarh and even during the work period Mahavir Singh and Anirbhan Singh have been coming to Chandigarh to the undersigned in this connection with the dealing and execution of this work. The documentary proof regarding such visits of the two is available with the undersigned as the railway reservation was got done for them through the undersigned as on 29.11.2009 both Mahavir Singh and Anirbhan Singh visited and on 08.02.2010 only Mahabir Singh visited Chandigarh and had discussed with the undersigned qua this work in purchase and in this time of completion was 90 days and thereafter during these discussion at Chandigarh time for completion of work was extended upto 31.03.2010 the L/C's were opened at Chandigarh thus payments were also released from Bank at Chandigarh. Copy of railway tickets are attached as Annexure XI. 15. To avoid the lengthy writing the matter is being submitted in brief. Copy of railway tickets are attached as Annexure XI. 15. To avoid the lengthy writing the matter is being submitted in brief. The cognizable offence are committed by the above said persons. It is therefore requested that the case of cheating, forgery and breach of trust and criminal conspiracy against the persons mentioned above or any other who may be found involved may be registered at the earlier to do justice with the company of the undersigned." 5. At the time of arguments, learned counsel for the petitioners mainly argued on one point that these are civil transactions only and FIR does not disclose any commission of offence, whereas learned Addl. PP for U.T., Chandigarh, mainly argued that none of the companies as stated in the FIR, is available on record of Common Wealth Games and these companies, during investigation, were not found enrolled with Common Wealth Games, to have dealings at that time for supplying goods etc. Learned Addl. PP further argued that none of the item is found to be supplied to the Common Wealth Games by these companies. Complainant has been called by the Investigating Officer but he is not coming and not cooperating. He next argued that it is a very big scam, which is being investigated by the police and even, role of the complainant is to be seen in the FIR. He contended that investigation is going on and commission of cognizable offence is made out from the perusal of the FIR. 6. After hearing learned counsel for the parties as well as learned Addl. PP and after going through the record, I find that learned counsel for the petitioners have challenged so many facts as mentioned in the FIR. After perusing the record, in no way, it can be held that dispute between the parties is of civil nature. The perusal of the FIR shows commission of cognizable offence. As argued by learned Addl. PP for U.T., Chandigarh that during investigation, these companies were not found to be enrolled with common wealth Games and items have not been supplied to the Common Wealth Games and all these facts are to be investigated in the present case. 7. As investigation is still going on, therefore, these petitions are premature and no ground is made out for quashing the FIR at this stage. 7. As investigation is still going on, therefore, these petitions are premature and no ground is made out for quashing the FIR at this stage. The findings of fact are to be given by the trial Court after completion of investigation, if the challan is presented against the accused. In the quashing proceedings, the findings of fact cannot be given. At this stage, it cannot be held whether facts mentioned in the FIR are correct or not. It is the prerogative of the Investigating Officer first to investigate the matter. 8. In view of the above discussion, in no way, it can be held, at this stage, that registration of the FIR in the present case is nothing but abuse of process of law or amounts to miscarriage of justice. 9. Therefore, finding no merits in all the petitions, the same are dismissed. 10. However, nothing stated above, shall constitute my opinion on merits of the case.