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2020 DIGILAW 536 (MP)

Shriram Fertilizer And Another v. State Of M. P.

2020-05-11

VIRENDER SINGH

body2020
JUDGMENT 1. Through this petition under Section 482 CrPC, the petitioners have invoked extraordinary powers of this Court to quash FIR No. 552/2019 registered at Police Station Manvar, District Dhar (M.P.) for commission of offence punishable under Section 420 of I.P.C., Section 3/7 of the Essential Commodities Act 1995 and Clause 7 of the Fertilizer (Control) Order 1985 for cheating by supplying less quantity per bag than the standard quantity promised to supply of Single Super Phosphate (SSP) fertilizer and thereby causing wrongful loss to the farmers for wrongful gain to self. 2. Succinctly stated facts giving rise to the present petition are that on receiving complaints from the farmers complainant Fertiliser Inspector (FI), Development Block Manawar Hari Singh Dawar alongwith Sr. Agri. Development Officer Sukhlal Alwa conducted surprise inspection on 23.06.2019 of Adim Jati Sewa Sahkari Samiti Maryadit, Manawar and checked weight of the bags of fertiliser manufactured by R.M. Phosphate and Chemicals Ltd. MIDC Industrial Area II, Dhule, Maharashtra and marketed by the petitioner company. On n average 1 kg weight per sack was found to be less than the declared weight of sacks of fertiliser supplied by the petitioner. Therefore, the FI lodged the FIR under challenge. 3. The sole ground of the petitioner is that they are not the manufacturer of the fertiliser. They had only supplied the same as received from the manufacturer in machine stitched condition. According to them, they have an agreement with the manufacturer that he will be responsible for any shortcoming in the material supplied through the petitioner. Therefore, the petitioners are not responsible for any deficit in declared quantity of sacks and are not liable to be prosecuted and, hence, the FIR qua them be quashed. 4. The learned Public Prosecutor has asserted that shortage found in surprise inspection was about 1 Kg per bag of 50 kg. Thus, on every 50 sacks supplied by the petitioners, they have saved one sack of fertiliser. Total 4400 bags of fertilizer were supplied to the concerned Cooperative Societies, thus, if calculated on an average 1 Kg pilferage per sack, the total shortage will be 4400 Kg. This short quantity is related to only one sector of supply, if the total supply made by the petitioner is taken into consideration, then it will amount to lakhs of tons. This short quantity is related to only one sector of supply, if the total supply made by the petitioner is taken into consideration, then it will amount to lakhs of tons. This is a white collar crime, in which, the people in dominating position are cheating the poor farmers by supplying less than the declared quantity and hence are earning huge profits. The inspection carried out was only a sample inspection and it does not mean that this is a case of pilferage of just a few kilos; rather it is a fraud not only with the farmers, but also with the Society and with the Nation. It is a crime against public at large and against larger interest of the Society. There is prima facie sufficient evidence and the material available on record to proceed with the prosecution of the petitioner along with the manufacturer. 5. It is argued that as per definition given in clause (f) of Section 2 of the Fertiliser Control order, 1985 "Dealer" means a person carrying on the business of selling fertilisers whether wholesale or retail and includes a manufacturer. Section 19 of the Control Order, 1985 prescribes that no person can sell for himself or for any other person any fertiliser with a fake claim. In the present case, the fertiliser was supplied with a claim that each sack contains 50 kg quantity and this claim was found false, therefore, the petitioners, who are dealer and had supplied less than declared quantity of fertiliser cannot shirk their responsibility by stating that they are not the manufacturer. 6. It is emphasized that it is a disputed question of facts whether the pilferage was at the manufacturer's end or at the supplier's end, but it is a fact that on a surprise check, quantity of fertiliser supplied by the petitioners was found to be substantially less than the declared quantity. In case of the disputed question of facts, as per settled principles of law, investigation cannot be aborted prematurely. 7. It is further averred that the present petition is premature as the investigation has not been completed so far. On the basis of the allegations made in the complaint, a prima facie commission of offence was found and an FIR has been registered. After investigation the Police may submit a closure report or may file a final report. 7. It is further averred that the present petition is premature as the investigation has not been completed so far. On the basis of the allegations made in the complaint, a prima facie commission of offence was found and an FIR has been registered. After investigation the Police may submit a closure report or may file a final report. The matter is still under investigation and the petitioners are not co-operating with the same. Instead of going to the police, they have come before this Court. Agreement between the manufacturer and the dealer/petitioner is their internal matter. No such agreement was produced before the police. There was no occasion for the police to investigate and to check veracity of this agreement or any other document relied upon by the petitioners. Otherwise also, the dealer or supplier is equally responsible for compliance of the mandatory provisions of law as well as of the Control Order, 1985. They cannot escape their accountability by stating that just being supplier, they are not responsible for any shortcoming in the material supplied by the manufacturer or violation of the law at the end of the manufacturer. 8. In support of his contention, learned counsel has placed reliance over the judgment passed by the Apex Court in the case of Vinod Raghuvanshi vs. Ajay Arora and others reported in (2013) 10 SCC 581 in which it has been held that the investigation should not be shut down at the threshold if the allegations have some substance and constitute commission of offence under the IPC or any other statute. At this stage neither the Court can embark upon an enquiry, whether the allegations in the complaint are likely to be established by evidence nor should the Court judge the probability, reliability or genuineness of the allegations made therein. 9. I have heard the rival parties at length and perused the documents. 10. The power under Section 482 of Cr.P.C. is extra ordinary in nature and it is settled proposition of law that this power has to be exercised sparingly and only in the cases where attaining facts and circumstances satisfy that possibilities of miscarriage of justice will arise in case of non-use of power. 10. The power under Section 482 of Cr.P.C. is extra ordinary in nature and it is settled proposition of law that this power has to be exercised sparingly and only in the cases where attaining facts and circumstances satisfy that possibilities of miscarriage of justice will arise in case of non-use of power. The Court can interfere only in such exceptional cases where it appears that non interference would cause great injustice or where the action of the authorities is capricious or arbitrary or where there is no evidence or material available on record or registration of the crime is wholly irrelevant or arbitrary. At this stage sifting or weighing of the evidence is neither permitted nor expected. 11. Guiding principles to exercise extraordinary powers conferred upon the High Courts have been discussed in the landmark judgement of Bhajan Lal (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 AIR SCW 237) . It is explained that such power could be exercised where the allegations made in the FIR or complaint are so absurd and inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. It is observed in para 102: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedingagainst the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 12. Later in Sushil Suri v. C. B. I. and Anr AIR 2011 SC 1713 Hon'ble the Apex Court stated that the power under Section 482 is though very wide but is not unbridled and it has to be exercised sparingly. It is further observed by their lordships that ' Section 482 of the Criminal P. C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court; viz. (i) to give effect to an order under Cr. It is further observed by their lordships that ' Section 482 of the Criminal P. C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court; viz. (i) to give effect to an order under Cr. P. C.; (ii) to prevent an abuse of the process of Court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide, but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Courts. Court would be justified in invoking its inherent jurisdiction to quash criminal proceedings where the allegations made in the Complaint or Charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.' (Para 11) 13. In Krishnanan Vs. Krishnaveni (1997 AIR SCW 950 : AIR 1997 SC 987 ) it is held that when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power. It may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. 14. The Apex Court in the recent case of Bhawna Bai vs. Ghanshyam & others 2020 (1) JLJ 381 (SC) has held that the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence. The allegation in the charge sheet shows a prima face case against the accused. 14. The Apex Court in the recent case of Bhawna Bai vs. Ghanshyam & others 2020 (1) JLJ 381 (SC) has held that the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence. The allegation in the charge sheet shows a prima face case against the accused. The circumstances alleged by the prosecution indicate that there are sufficient grounds for proceeding against the accused. In the case of Varala Bharath Kumar and another vs. State of Telangana and another reported in (2017) 9 SCC 413 the Apex Court has held as under: 7. While exercising power under Section 482 or under Article 226 in such matters, the court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 of the Code though wide has to be exercised sparingly, carefully or with caution and only when such exercise is justified by the tests specifically laid down under Section 482 itself. It is to be exercised ex debito justitiae to do real and substantial justice, for the administration of which alone courts exist. The court must be careful and see that its decision in exercise of its power is based on sound principles. The inherent powers should not be exercised to stifle a legitimate prosecution. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. 15. Reliance has been placed by the petitioners on Korra Srinivas Rao Vs. State of Maharashtra SCC online : 2002(4) Mh.L.J. 368 , Arun Kumar Vs. State of Punjab 1995 SCC online P&H 249 , Manoj Grover Vs. State of Punjab 2009 SCC On line P&H 11164 , M/s Tata Chemicals Ltd. Vs. State of Punjab 2013 SCC Online P&H 5630 , Kehar Singh Vs. State of Punjab 2011 SCC Online P&H 12543 and Madan Dangi Vs. State of Punjab 1987 Cr.L.J. 138 . Out of these Korra Srinivas and Madan Dangi cases (supra) are not relevant to the issue involved in this petition and all other cases are related to deficit in quality of the fertiliser and therefore, are distinguishable on facts and hence, are not applicable to the present petition. 16. State of Punjab 1987 Cr.L.J. 138 . Out of these Korra Srinivas and Madan Dangi cases (supra) are not relevant to the issue involved in this petition and all other cases are related to deficit in quality of the fertiliser and therefore, are distinguishable on facts and hence, are not applicable to the present petition. 16. In the present case, the report of the Fertiliser Inspector prima facie sufficiently shows that on surprise check, quantity of the fertiliser was found short than the declared quantity. It is not disputed that the fertiliser was supplied by the petitioner. The investigation is at initial stage. At this stage, it cannot be said as to who was responsible for the pilferage. Accountability of the petitioners has to be ascertained by the investigation. I consider that the arguement advanced by the learned Public Prosecutor that the matter involves disputed question of facts has some force. The petitioner may not be the 'manufacturer' of the fertiliser but at this initial stage, their responsibility cannot be finally determined. The Police have not collected the entire document so far. Therefore, this is not a proper case for quashment of the FIR. Let the investigation be completed by the Police. Accordingly, the petition is dismissed.