TMI Blog2018 (9) TMI 2024X X X X Extracts X X X X X X X X Extracts X X X X ..... ows that not only the persons connected to the affairs of the M/s SPML Infra ltd., but other connected company executives and engineers of the Govt. of Arunachal Pradesh are roped into the alleged act of criminal conspiracy amongst themselves in the supply of sub-standard runner turbines and receiving the substandard runner turbines which were not in conformity with the specified standard as it has come to light, after thorough investigation into the FIR. Therefore, it is not the case concerning the petitioners or their company namely, M/s SPML Infra ltd. only, but the other responsible persons concerned thereto, for which it is not factually possible to segregate only the petitioners case. This Court is of the considered opinion that it is pre-mature at the present stage of the case to say conclusively as to whether there was any fraudulent, dishonest and deceitful intention or act on the part of the petitioners acting on behalf of the company M/s SMPL Infra ltd., within the meaning of Sections 415/418/420 of the IPC in the backdrop of facts alleged, where departmental engineers and turbine manufacturing company were also allegedly involved in criminal conspiracy for wrongful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to completion and commissioning of the project including commissioning of the 3(three) Power Generating Units. The Chief Engineer of the respondent No. 3 issued a certificate, dated 30.09.1997, to the petitioners certifying satisfaction over the execution of the said project and its commissioning in July, 1996 and further, thereby confirmed that in the project, besides other equipments and machineries, the company supplied and erected structural steel works for construction of power house, switchyard and other structural works and also that the overall performance of their work was very good. The Chief Engineer of the respondent No.3/DOP issued another certificate, dated 21.09.1998, certifying the company s work performance as very satisfactory noting further that their technical team of experts executed the works efficiently to the satisfaction of the Engineers of the DOP. By the said certificate, it was stated that M/s SPML Infra Ltd. was also entrusted with the maintenance of the power plant of the 3(three) Units and that the project generated 90 Lac KW Units of electricity and that the job done by the Company was very satisfactory. 5. It is the contention of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted charge-sheet No.03/2004, dated 28.05.2004, which also remained not known to them till the year 2017. 8. The petitioners have further contended that the contractual disputes between the parties were adjudicated by the learned Arbitral Tribunal and the Tribunal passed an award, dated 05.11.2016 rejecting most of the claims of the claimant being M/s SPML Infra Ltd. Against the said Award, the company preferred a petition under Section 34 of the Arbitration and Conciliation Act, 1996 being Arbitration Case No. 02/2017 before the Court of learned District Judge, Western Division, Yupia, Arunachal Pradesh and the learned District Judge suspended the operation of the arbitral award, dated 05.11.2016 and the effect of the said order has been extended from time to time. According to the petitioners, the disputes between the parties regarding the discharge of contractual obligations are purely civil in nature and the same are duly adjudicated by a Civil Court of competent jurisdiction. 9. The petitioners have also contended that from the FIR, it transpires that the respondent No.3/DOP had sent the samples of the runner bucket in question which was commissioned by the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er terms of the agreement, the composition ought to have been Nickel 4% and Chromium 14%. The respondents/DOP, therefore, have taken the stand that the petitioners company supplied substandard runner buckets (turbines) containing components of material which were not upto the specification provided in the agreement, which resulted in frequent damage of the runner buckets (turbines). A team of experts from the Bharat Heavy Electrical Ltd.(BHEL), Ranipur also visited the plant for technical inspection of the damaged units and furnished its report in July, 2000 to the effect that (i) the materials (runner turbines) were of substandard; (ii) lower thickness of runner bucket ring mating with hub flange and (iii) possibly poor quality of casting. The deliberate act of supply of substandard materials to the plant was being contrary to the specifications incorporated in the agreement, it is apparent that the petitioners company had knowingly and with a malafide intention supplied the substandard runner buckets (turbines) with a motive to dupe the Govt. of Arunachal Pradesh of huge public money, exposing the petitioners to criminal prosecution for the offences punishable under Sections 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handing over of the project to the authority on 01.04.2000, disputes arose between the company and the Government officials over non-payment of dues payable on account of maintenance of the project and therefore, in a diabolical manner, criminal charges have been brought against the petitioners, who are directors in-charge of the affairs of the M/s SPML Infra ltd. on false and fabricated stories, when the warranty period itself expired before that. According to Mr. Deb, learned Sr. counsel, if the proceeding in question is allowed to be continued, that would amount to abuse of the process of the law and also would defeat the ends of justice by way of converting the civil liability, if any to criminal liability over contractual disputes. Mr. Deb in support of his argument at length relied upon the ratio of the judgments delivered by the Hon ble Supreme Court in the case of Devendra Ors., Vs. State of Utter Pradesh Anr. and V. Y. Jose Anr. Vs. State of Gujarat Anr., reported in (2009) 3 SCC 78. 14. Per contra, Mr. K. Tado, learned Public Prosecutor appearing for the State respondents, submitted that although certain contractual disputes have been referred for alternative d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assment of litigation for a number of years although no case has been made out against him. It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all. 16. In Hira Lal Hari Lal Bhagwati v. CBI [(2003) 5 SCC 257], this Court held : 40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the latter being not a shortcut of executing a decree which is non-existent. The Superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts. 19. An offence of cheating may consist of two classes of cases: (1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here; (2) When by reason of such deception, the complainant has not done or omitted to do anything which he would not do or omit to do if he was not deceived or induced by the accused. 20. It is in that sense, a distinction between a mere breach of contract and the offence of cheating should be borne in mind. We, having regard to the facts and circumstances of the case, are of the opinion that no case has been made out and against the appellant so as to hold that he should face the criminal trial. 17. Perusal of the FIR, dated 26.06.2000, lodged by one Sri G. Doje, the Executive Engineer (Electrical), Tawang Electrical Division, Arunachal Pradesh, through the Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil), Itanagar, 5. Sri K. Kumaravel, Director of M/s Beacon Neyrpic, Chennai, 6. Sri S. R. Krishnan, Director of M/s Kartik Steels, Chennai and 7. Dr. J.D. Sharma, Director AHEC, Roorke, Uttaranchal. The aforesaid list of the accused persons mentioned in the charge-sheet shows that not only the persons connected to the affairs of the M/s SPML Infra ltd., but other connected company executives and engineers of the Govt. of Arunachal Pradesh are roped into the alleged act of criminal conspiracy amongst themselves in the supply of sub-standard runner turbines and receiving the substandard runner turbines which were not in conformity with the specified standard as it has come to light, after thorough investigation into the FIR. Therefore, it is not the case concerning the petitioners or their company namely, M/s SPML Infra ltd. only, but the other responsible persons concerned thereto, for which it is not factually possible to segregate only the petitioners case. On the other hand, the co-accused persons have not come-up with a similar petition under Section 482 CrPC and facts raised, are being disputed by the State respondents, the same cannot fairly be adjudicated in the instant pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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