w w w . L a w y e r S e r v i c e s . i n



M/s. Global Energy Pvt. Ltd., Rep. by its Managing Director, Maj. Gen. N.S. Pathania & Others v/s The State of Karnataka, by Mudhola Police Station, Rep. by SPP & Another

    Criminal Petition Nos. 100418 & 100419 of 2017

    Decided On, 11 January 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE R.B. BUDIHAL

    For the Petitioners: Uday Holla, Senior Advocate for Hidayathulla Kuvenda. For the Respondents: R1, Raja Raghavendra Naik, HCGP, R2, V.M.Sheelvant, Advocate.



Judgment Text

(Prayer: This criminal petition is filed under Section 482 Cr.P.C. praying to quash the first information report dated 11.02.2017 being Crime No.52/2017 for the offences under Section 405 and 418 of IPC (Annexure-A) pending against the petitioner herein on the file of Principal Civil Judge (Junior Division) & JMFC Court Mudhol, Bagalkot District.

This criminal petition is filed under Section 482 Cr.P.C. praying to quash the first information report dated 11.02.2017 being Crime No.52/2017 for the offences under Section 405 and 418 of IPC (Annexure-A) pending against the petitioner herein on the file of Principal Civil Judge (Junior Division) & JMFC Court Mudhol, Bagalkot District.)

1. Since the above two petitions are in respect of same crime number and since common questions of law and facts are involved in both the petitions, they were taken together to dispose of them by this common order in order to avoid repetition of facts and law.

2. Crl.P.100418/2017 is filed by petitioners/accused Nos.1 and 3 and Crl.P.100419/2017 is filed by petitioner/accused No.2. Both the petitions are filed under Section 482 of Cr.P.C. praying the Court to allow the petition and to quash the proceedings i.e., FIR dated 11.02.2017 registered in Crime No.52/2017 for the offence punishable under Sections 405 and 418 of IPC, now pending on the file of Prl. Civil Judge (Jr. Dn.) and JMFC Court Mudhola, Bagalkot District.

3. The brief facts of the case as averred in the petitions that petitioner No.1/accused No.1 Global Energy Pvt. Ltd. hereinafter referred as ‘Company’ incorporated under the provisions of the Companies Act, 1956 having its registered office address at Goa and Corporate office address at New Delhi. The Petitioners i.e., accused Nos.2 and 3 are law abiding citizens. Petitioner No.1 company is engaged in the business of trading of electricity throughout India. The Petitioner Company being a Class “A” Licensee under Section 14 of the Electricity Act, 2003, operates strictly under the governance of the regulatory framework of the electricity sector. The petitioner No.1 company gained a sound goodwill and reputation in the market having various offices in the entire country with an approximate strength of 400 employees. Respondent No.2 is a company incorporated under the provisions of Companies Act, 1956 having its registered office at address as shown in the cause title and also having its registered office at the address as shown in the cause title and also having its corporate office at Bengaluru.

4. In the year 2015, the petitioner No.1 company had entered into a power supply arrangement with the Telangana State Power Coordination Committee (TSPCC), a Power Procurement Agency for various Electricity Distribution Companies in the State of Telangana. In view of the aforesaid arrangement TSPCC had issued Purchase Orders being PO No.26/14-15/D No.302 dated 28.02.2015 and PO No.33/14-15/D No.327 dated 27.03.2015 in favour of the Petitioner No.1 Company for purchase/procurement of Round The Clock (RTC) power on firm basis from CPPs in Karnataka through the Petitioner No.1 Company during the period from 03.03.2015 to 30.06.2015. The Petitioner No.1 Company had entered into such power procurement arrangement with several Generating companies in Karnataka including the Respondent No.2 herein. The power purchase arrangement with the Respondent No.2 for the relevant period i.e., the period from 03.03.2015 to 30.06.2015, is reflected in the Authorization Letters and the Letter of Intent (LOI) issued thereto by the Respondent No.2 in favour of the Petitioner No.1 Company on 02.03.2015, 12.03.2015, 24.04.2015 and also on 19.05.2015. During the aforesaid period of power supply, the parties herein had transacted approximately to the

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tune of Rs.33.50 Crore. The petitioner No.1 Company, besides making the full payment of Open Access Charges, has also paid approximately an amount more than of Rs.28.00 crores to the Respondent No.2 out of the total transaction/energy billed during the relevant period.

Since the power was pooled from various other generators for the accomplishment of power supply arrangement with TSPCC, the reconciliation of accounts became far more complex than normal bilateral transaction. Further, there were certain mismatches as to the payments to be made in connections with the transaction. In view of the above, the Petitioner No.1 Company had requested the Respondent No.2 to schedule a joint meeting in order to reconcile the statements. However, the Respondent No.2 did not responded to such requests; instead, started making arbitrary and repeated demands for payments, without reconciling the accounts. The Petitioner No.1 Company had been making timely payments to the Respondent No.2 and consequent to this, the Petitioner had been consistently earned rebates of 1% to 2%, as envisaged in the LOIs with Respondents. It was only later period, the reconciliation of the accounts could not be made due to some problems occurred in the computer software of the petitioner No.1 Company which disrupted the records and accounts. Thus, on 09.10.2015, the Petitioner No.1 company assured the Respondent No.2 the commencement of due payments. A copy of the communication dated 09.10.2015 is herewith produced and marked as Annexure-F.

5. It is submitted that pursuant to the above, the Respondent No.2 vide its communication dated 16.11.2015 has deputed one of their personnel namely Mr. Shikant Bhutnal for follow-ups of payments. Further, several discussion for the resolution of the issue of outstanding payments were carried out between the Petitioner No.1 Company and the Respondent No.2 which ultimately culminated in a final settlement of the disputes wherein, the Parties have crystallized Rs.15 Crores as the full and final settlement amount of the outstanding payable. Pursuant to which, an amount of Rs.5 Crores had been paid upfront to the Respondent No.2 by RTGS. Further, it is submitted that the Respondent No.2 had duly acknowledged and accepted the payments made as aforesaid in pursuance of and in terms of the said settlement. Further, the said settlement had also envisaged the terms for making the balance payment to the tune of Rs.10 Crores as well. However, it is pertinent to note that after due receipt of the said upfront payment of Rs.5 Crores, the Respondent No.2 maliciously started disputing the balance amount payable and vide three independent communication dated 06.12.2015 deputed its staff purportedly for follow-up the payments; but assumingly, with an instruction to succumb the petitioner to the undue demands of the respondent No.2 by exercising undue pressure and force.

6. It is also submitted that vide a Communication dated 07.12.2015, the respondent No.2 made a complete incorrect and false statement to the effect that the balance due payment is to the tune of Rs.13.94 Crores. The conduct of respondent No.2 negating the terms of settlement after due receipt of the part payment under the settlement is highly unfair, arbitrary and actuated with malafide to gain undue advantage. A copy of the letter dated 07.12.2015 is herewith produced and marked as Annexure-J. It is submitted that the Respondent No.2 vide their email dated 08.12.2015 have demanded the Petitioner No.1 Company to release the payments by keeping of Rs.1.00 Crore pending till the accounts get reconcile by both end. Pursuant to this, though the Petitioner’s representative had approached the Respondent No.2 representative to hand over a Cheque dated 10.12.2015, bearing no. 565821; however, the Respondent No.2 representative had refused to accept the same without any reasons. In view of the same, the petitioner No.1 Company transferred Rs.1 Crore vide RTGS i.e., on 10.12.2015 which was also duly accepted by the Respondent No.2. A copy of the same Petitioner’s Communication in this regard dated 10.12.2015 reflecting the aforesaid facts is herewith produced and marked as Annexure-K.

7. It is further submitted that again on 08.01.2016, the petitioners had paid Rs.50,00,000.00 by way of RTGS in favour of the respondent No.2. However, despite all the above, the respondent No.2 indulged in an unfair act of disputing the balance amount and made allegations vide its email dated 20.02.2016 to the effect that the principal outstanding amount is to the tune of Rs.10.71 Crores along with the interest, surcharge etc., to the tune of Rs.1.95 Crores. On the one hand, the respondent No.2 had been accepting the payments made in terms of the settlement arrived between the parties and on the other hand it had been disputing the quantum of outstanding amount.

8. It is pertinent to mention here that nowhere in the dealings or transactions of the parties one can see any element of dishonesty or cheating. The parties had been in full confidence of each other and the payments had been made from time to time. The business relationship of the parties was also intact. This aspect is evident from the Respondent No.2 communication dated 10.04.2016. It is submitted that to the utter shock and dismay of the Petitioners, the Respondent No.2 chose to sent a Legal Notice dated 02.05.2016 to the Petitioner No.1 company, thereby claiming the outstanding amount, allegedly to the tune of Rs.12.27 Crores including the interest of delayed payment surcharge etc.

9. It is also submitted that the above said legal notice was duly replied by the petitioner No.1 Company vide its communication dated 16.05.2016, inter alia, by appraising the true and correct factual position as to the outstanding and also invited the attention of respondent No.2 to the settlement arrived at in this regard which stood affirmed by Mr.Sangmesh Nirani, the Promoter/Director of respondent No.2 and also its representative Mr.Murgesh Nirani, who is a family member of the Promoters/Directors of respondent No.2 Company and who is also a Member of Legislative Assembly in Karnataka.

10. It is submitted that despite of the assurances for due payments made by the petitioners and making of part payments, the representatives of the Respondent No.2 entered into the petitioner’s offices in Mumbai and also in New Delhi and threaten and abused the officers of the petitioners. However, considering the cordial relationship that the petitioners had with the respondent No.2, the petitioners did not initiate any legal action against the respondent No.2 or its representatives. While responding to the said notice, the petitioner No.1 Company had also transferred a further amount to the tune of Rs.50,00,000.00 vide RTGS on 16.05.2016 against the balance outstanding and called upon the respondent No.2 for resolution of the matter amicably. In furtherance to the above, the petitioners made a further payment of Rs.50,00,000.00 on 27.05.2016 and yet another payment of Rs.1.00 Crores on 06.06.2016 vide RTGS, which is evident by the petitioner’s letter dated 15.06.2016 and to which the respondent No.2 gave its acknowledgement though its letter dated 01.07.2016 and email dated 02.07.2016. The copies of the letters dated 16.05.2016, 15.06.2016, 01.07.2016 and the e-mail dated 02.07.2016 are collectively produced herewith and marked as Annexure-P Series.

11. It is also submitted that as reflected from the Bank Account Statement/Ledger Account Extract of the Petitioner No.1 Company, the Petitioners had again made further payments of Rs.Rs.25,00,000.00 each on 24.06.2016, 12.07.2016, 03.08.2016 and 09.08.2016. Thus, the Petitioner No.1 Company had made a payment of Rs.9.5 Crores to the Respondent No.2 in pursuance of and under the settlement arrived at between the parties. A copy of the Petitioner’s Ledger/ Bank Account Statement reflecting all the aforementioned payments is herewith produced and marked as Annexure-Q. However, as a matter of fact, the Respondent No.2 kept insisting for the payment of amount which is allegedly outstanding by the Petitioner No.1 Company. It is stated that such exaggerated and incorrect claims has been nothing but mere falsification of the true accounts and had made in complete negation of the settlement of the Parties in this regard.

12. It is submitted that on 20.12.2016, the petitioners had issued a detailed communication to the Respondent No.2 recapitulating the entire factual matrix in the matter and reiterating the settlement/arrangement as agreed between the parties as envisaged in the letter dated 23.11.2015 which had been confirmed by Mr.Sangmesh Nirani himself. The Petitioners also specifically pointed out there in the factum of payment of Rs.9.5 Crores out of total Rs.15 Crores as settled between the parties and expressed Petitioner’s hope to have the cordial relationship to continue and to resolve the matter in terms of the settled amount.

13. Heard the arguments of learned Senior Counsel appearing for the petitioners in respect of both the above petitions and also the learned Counsel appearing for respondent No.2-complainant so also heard the arguments of learned HCGP representing respondent No.1-State.

14. Learned Senior Counsel appearing for the petitioners made submission that the allegations made in the complaint and FIR, even if accepted at their face value, they will not make out a case of the alleged offences as against the petitioners. There is no prima facie case and the complaint came to be filed with mala fide intention to harass the petitioners to bring the pressure on them to agree for the arbitrary terms of respondent No.2-complainant. No offence is made out against the petitioners. Even if it is the case of the complainant that the alleged offence was committed in between 2.3.2015 and 25.7.2017, there is no explanation regarding delay in filing the complaint and registration of FIR. The allegations made in the complaint will not make out any cognizable offence committed by the petitioners. The learned Senior Counsel further made the submission that looking to the very allegations in the complaint, prima facie, they go to show that the transaction between the petitioners and respondent No.2-complainant are civil in nature and hence, there is no criminality involved in the case and therefore, on this ground itself, the criminal proceedings initiated are liable to be quashed. Respondent No.2-complainant and its promoters are politically connected and one of the family members is a sitting Member of Legislative Assembly in Karnataka and therefore, there is misuse of the power for registration of FIR. There was settlement entered into between the petitioners and respondent No.2-complainant. In spite of such settlement entered into, respondent No.2-complainant is again disputing the due amount in disregard to the settlement and making the demand for the higher amount. The petitioners have taken steps to pay the amount and resolve the dispute by clearing the outstanding due amount. The criminal proceedings are initiated only with an intention to intimidate the petitioners and to make the unlawful gain. There is no fraudulent and dishonest intention and there is no entrustment on the part of the petitioners in order to attract the alleged offence under Section 405 of IPC. Learned Counsel also made submission that petitioner No.1 company is not an agent of respondent No.2, but the sale of electricity is taken place in between petitioner No.1 company and respondent No.2. Petitioner No.1 company is not acting as an agent in supplying electricity to the Telangana State Power Co-ordination Committee. Learned Senior Counsel further made submission that respondent No.1 police without application of mind to the complaint averments and the correspondence in between the petitioners and respondent No.2 company and without verification as to whether there is any prima facie material for the alleged offence of criminal breach of trust, mechanically received the complaint and registered the FIR as against the petitioners. When there is no entrustment of the amount and there is no fiduciary relationship between the petitioners and respondent No.2, the alleged offence under section 405 of IPC, cannot be made out. Learned Senior Counsel further made submission that there was settlement in respect of the due amount and mere failure to keep the promise at a subsequent stage itself, does not satisfy the ingredients of the offence of cheating. Respondent No.2 company itself has admitted that there is periodic payment of due amount by petitioner No.1 company. Learned Senior Counsel made submission that on the one hand, as per the settlement, respondent No.2 went on receiving the payments from time to time, but at the same time, filed the criminal complaint alleging that there is an offence committed by the petitioners. It is also the submission made by the learned Senior Counsel that there is no liability on the part of petitioner accused Nos.2 and 3 on the alleged ground of vicarious liability. Learned Senior Counsel also made the submission that unless there is statutory obligation on the part of petitioner accused Nos.2 and 3, it cannot be said that there is any criminal liability of petitioner accused Nos.2 and 3. He further made submission that since the transaction being a commercial transaction in between the petitioners and respondent No.2-company, without making preliminary enquiry in the matter, respondent No.1 registered the criminal complaint which is against the law laid down by the Hon’ble Apex Court in the case of Lalitha Kumari. The ingredients of Section 405 and 418 of IPC are not at all complied with so as to maintain the criminal proceedings as against the petitioners. In support of his contentions, learned Senior Counsel relied upon the following decisions:

1. (2011) 13 SCC 412 – Thermax Limited and others Vs. K.M. Johny and others

2. (2013) 6 SCC 740 – Chandran Ratnaswami Vs. K.C. Palaniswamy and others

3. AIR 1974 SC 301 – Hari Prasad Chamaria Vs. Bishun Kumar Surekha and others

4. (2005) 10 SCC 336 – Uma Shankar Gopalika Vs. State of Bihar and another

5. (2002) 1 SCC 241 – S.W. Palantikar and others Vs. State of Bihar and another

6. (2000) 2 SCC 636 – G. Sagar Suri and another Vs. State of U.P. and others

7. (2008) 5 SCC 662 - S.K. Alagh Vs. State of Uttar Pradesh and others

8. AIR 2010 SC 3624 – Kishan Singh (D) through L.Rs. Vs. Gurupal Singh and others

9. 2010 (10) SCC 361 – V.P. Shrivastava Vs. Indian Explosives Limited and others

10. (2003) 3 SCC 11 – Ajay Mitra Vs. State of M.P. and others

11. (2005) 10 SCC 228 – Anil Mahajan Vs. Bhor Industries Ltd. and another

12. (2002) 1 SCC 241 – S.W. Palantikar and others Vs. State of Bihar and another

13. (2013) 10 SCC 591 – Umesh Kumar Vs. State of Andhra Pradesh and another

14. (2010) 10 SCC 673 – Manoj Mahavir Prasad Khaitan Vs. Ram Gopal Poddar and another

15. (1982) 1 SCC 561 – State of West Bengal and others Vs. Swapan Kumar Guha and others

16. (1970) 1 SCC 653 – B.N. Sharma. Vs. Bipen Kumar Tiwari and others

17. (2008) 5 SCC 662 – S.K. Alagh Vs. State of Uttar Pradesh and others

18. (2014) 10 SCC 663 – Binod Kumar and others Vs. State of Bihar and another

15. Learned Senior Counsel while drawing the attention of this Court to the documents produced by the petitioners so also the legal position in the aforesaid decisions relied upon by him, made the submission that there is no prima facie case made out by respondent No.2 and the registration of criminal case is the abuse of process of the Court. Hence, he submitted to allow the criminal petitions and to quash the proceedings initiated as against the petitioners.

16. Per contra, learned Counsel for respondent No.2 complainant during the course of the arguments made submission that the documents produced by the petitioners so also the correspondence in between the petitioners and respondent No.2 company clearly show that the payment made by Telangana State Power Coordination Committee to Global Energy Private Limited has been misused by the petitioner No.1 company without making the payment of the said amount to respondent No.2 company. He made submission that in para No.4 of the complaint also, it is specifically mentioned about the amount misused by the petitioners company dishonestly. The use of the said amount without making payment to respondent No.2 complainant is in violation of the agreement prescribing the mode in which the trust is to be discharged by retaining the amount of Rs.35,66,080/-. Hence, the learned Counsel made submission that by misusing the said amount, the petitioners committed the offence of criminal breach of trust. Learned Counsel also submitted that the Global Energy Private Limited Director Sri Mikhail Dhaul and the Managing Director Major General N.S. Pathania (retd.) have made their admission in the letter dated 2.1.2016 in respect of the agreement as well as the amount paid by the Telangana State Power Coordination Committee to Global Energy Private Limited. Hence, he made submission that this admission itself prima facie goes to show the commission of the offence by the petitioners. Learned Counsel further made submission that there is no bar for filing the criminal complaint in respect of the commercial transactions, if there is material for commission of the criminal offences. He also made submission that the matter is only at the FIR stage, investigation is to be conducted and final report is to be submitted after investigation. Hence, the petitions are at the premature stage and only on the basis of the FIR, the Court cannot ascertain, whether such an offence has been committed or not. The learned Counsel also made submission that all the documents and the correspondences have not at all produced by the petitioners and hence, there is suppression of the facts before the Court, only with intention to get an order of quashing the proceedings. Therefore, he submitted that looking to the materials, there is prima facie case made out by the complainant for commission of the said offence. Hence at this stage, this Court cannot invoke Section 482 of Cr.P.C. for quashing the proceedings. Hence, he submitted to reject the petitions. In support of his contentions, learned Counsel for respondent No.2 relied upon the following decisions:

1. (2014) 3 SCC 389 – Vijayander Kumar and others Vs. State of Rajasthan and another

2. (2002) 1 SCC 555 – Kamaladevi Agarwal Vs. State of W.B. and others

17. The learned High Court Government Pleader representing respondent No.1 State also during the course of his arguments submitted that there are serious allegations made by the respondent No.2-complainant against the petitioners in both the petitions in committing the alleged offence of criminal breach of trust under Section 405 of the IPC and also cheating under Section 418 of the IPC. He has submitted that as per the contentions of petitioners and the complainant, there are disputes with regard to material facts, which cannot be gone into in the petitions filed under Section 482 of the Cr.P.C. The complaint averments prima facie shows the commission of alleged offences by the petitioners.

18. So far as the contention of the petitioners that the nature of transaction is civil in nature, learned High Court Government Pleader has submitted that even if the civil proceedings are pending, there is no bar under the criminal jurisprudence to file the criminal complaint and to initiate criminal proceedings. He has submitted that according to petitioners only some amount is due to the tune of Rs.5 crores, whereas, according to the complainant, the due amount is more than Rs.12 crores. When only an FIR has been registered on the complaint of respondent No.2, it is too early for the Court to decide the matter invoking Section 482 of Cr.P.C. In view of the serious allegations made, investigation has to be completed and final report is to be submitted. Hence, it is submitted that with liberty to the petitioners to approach the Court after filing the final report, the petitions may be dismissed.

In support of his contentions, the learned High Court Government Pleader has relied upon the decision of the Hon’ble Apex Court rendered in Criminal Appeal No.1144/2016(Spl. Leave Petition (Crl.) No.5478/2015) in the case of The State of Telangana Vs. Habib Abdullah Jeelani and others.

19. I have perused the averments made in both the petitions, documents produced by the petitioners along with the petitions, the decisions relied upon by learned senior counsel in respect of both the petitions, so also, the decisions relied upon by the learned High Court Government Pleader representing respondent No.1 and the learned counsel representing respondent No.2-complainant, which are referred to above. I have also considered the oral submissions made by both sides at the bar.

20. As per the complaint averments, it is the case of the respondent No.2 complainant that the complainant- company is engaged in supply of power to the Telangana State Power Co-ordination Committee (“TSPCC” for short) situated at Telangana through Global Energy Private Limited (“GEPL” for short).

21. It is the contention of Sri.Uday Holla, learned senior counsel for the petitioners i.e., GEPL that GEPL is not acting as a mediator or as an agent for TSPCC or for the respondent No.2-complainant, but it is out sale transaction between the petitioners and the respondent No.2-complainant for the purchase of electricity. There is no question of committing the offence of criminal breach of trust or cheating. He drew the attention of this Court to the Term Sheets produced as per Annexures–E, E1, E2, E3 and referred to Sl.Nos.1 and 2 of the said Term Sheets wherein the complainant-Nirani Sugars Ltd., and the petitioners-GEPL are referred to as Seller and Buyer respectively and submitted that the transaction is only between petitioner No.1-company and respondent No.2-complainant. Therefore, the question of TSPCC having paid the amount and the petitioners retaining the same and misappropriating without making payment to the complainant as per the time schedule agreed in the Term Sheets does not arise at all. No doubt, there may be some lapses on the part of petitioner No.1-company in making payment of some of the amounts as per the time schedule, but that itself will not make out a case of criminal breach of trust, so also, cheating. However, column Nos.10, 13 and 18 of the Terms Sheets under Annexures E, E1, E2 and E3 referred to above prima facie at this stage supports the contention of respondent No.2-complainant that complainant agreed to supply the electricity to TSPCC through GEPL i.e., petitioner No.1. Therefore, the contention of the learned senior counsel at this stage that the purchase of electricity from the complainant by petitioner No.1 GEPL is an independent transaction without having any connection to TSPCC is not acceptable.

22. It is the contention of the learned senior counsel for the petitioners that when it is a out purchase transaction of electricity from the complainant by petitioner No.1, if there is any delay in the payments that itself will not make out a case of criminal breach of trust and cheating as contended by the respondent No.2 complainant. It is also his contention referring to the decisions relied upon by him that the intention to commit the alleged offences and the ingredients of two offences were not at all prima facie established by the complainant.

However, the terms of agreement as per the Term sheets, referred to above, goes to show that TSPCC is the purchaser of the electricity from the complainant through the mediation of the petitioner No.1 GEPL and TSPCC has to make the payment to the petitioner No.1 GEPL, who in turn has to pay the same to the respondent No.2 complainant as per the time schedule agreed in the term sheets. Now, whether the payments were made strictly in accordance with the time schedule agreed upon by GEPL-petitioner No.1 and complainant-respondent No.2 is to be looked into.

23. In page No.16 of the petition in Crl.P.No.100418/2017 filed on behalf of accused Nos.1 and 3 at paragraph No.15 it is contended by the petitioners themselves that “it was only later period, the reconciliation of the accounts could not be made due to some problems occurred in the computer software of the petitioner No.1 company which disrupted the records and accounts. Thus, on 9.10.2015, petitioner No.1 company assured the respondent No.2 the commencement of due payments.” This prima facie shows that the payments were not made as per the scheduled time agreed upon between the parties. It may be for the reasons mentioned by the petitioners in the said paragraph, but the fact remains that the payment is not made as per the time schedule, which prima facie shows that the amount paid by TSPCC is retained by the petitioner No.1 company without repaying the same to respondent No.2 complainant.

24. The averments in the complaint shows that in respect of power supply by the complainant to petitioner No.1 GEPL for the period from 16.3.2015 to 23.3.2015 an amount of Rs.2,35,66,080/- has been dishonestly used by the accused Nos.2 and 3 without making payment to the complainant, in violation of the agreement prescribing the mode in which the trust is to be discharged, by retaining an amount of Rs.35,66,080/- and thereby, committed an offence of criminal breach of trust. There is also an allegation in the complaint that Sri.Mikhail Dhaul, the Director and Maj.Gen.Sri.N.S.Pathania (Retd.), Managing Director of GPEL have also converted an amount of Rs.6,77,31,846/- to their own use dishonestly, which is also in violation of the Term sheets, referred to above.

25. However, in Crl.P.No.100418/2017 in paragraph No.14 it is pleaded by the petitioners that the transaction in between petitioners and the respondent No.2-complainant is to the tune of Rs.33.50 crores, out of which, an amount of Rs.28 crores has been already paid and the remaining amount of Rs.5.50 crores is due to the complainant. But in paragraph No.16, it is pleaded by the petitioners that for reconciliation of the statements, the respondent No.2 vide its communication dated 16.11.2015 has deputed one of their personnel namely Mr.Srikant Bhutnal for follow up payments and several discussions for the resolution of issue of outstanding payments were carried out between petitioner No.1 company and the respondent No.2, which ultimately culminated in final settlement of the disputes wherein, the parties have crystallized Rs.15 crores as the full and final settlement amount of the outstanding payable and out of which, Rs.5 crores has been already paid upfront to the respondent No.2 by RTGS. It is the further contention of the petitioners in paragraph No.17 that after due receipt of the said upfront payment of Rs.5 crores, respondent No.2 complainant maliciously started disputing the balance amount payable and vide three independent communications dated 6.12.2015 deputed its staff purportedly for follow up payments, but assumingly, with an instruction to succumb the petitioners to the undue demands of the respondent No.2 by exercising undue pressure and force. In paragraph No.18 it is pleaded that vide communication dated 7.12.2015, the respondent No.2 made a complete incorrect and false statement to the effect that balance due payment is to the tune of Rs.13.94 crores.

26. These aspects of the matter clearly show that there are serious disputes between petitioners and respondent No.2-complainant with regard to the amount actually paid and the amount which is due by the petitioners to the respondent No.2. Such disputed questions cannot be decided while invoking Section 482 of the Cr.P.C. Apart from that, as submitted, the matter is at the stage of investigation. The investigation is to be conducted and after collecting the necessary materials, the Investigating Officer has to file the final report in the matter. At this stage, only on the basis of FIR, the Court will not be in a better position to come to a conclusion that the claim made by the complainant for commission of the alleged offences by the petitioners is a false case.

27. Regarding the contention of the petitioners that the matter is purely civil in nature and there is no criminality involved in the case, the learned senior counsel has relied upon the decisions of the Hon’ble Apex Court, which are referred to above, as against which, the learned counsel appearing for the respondent No.2-complainant has relied upon the Full Bench decision of the Hon’ble Apex Court reported in (2014)3 SCC 389 in the case of Vijayander Kumar and others Vs. State of Rajasthan and another wherein at paragraph Nos.10 and 12 of the said decision their lordships have observed as under:

“10. Contra the submission advanced on behalf of the appellants, the learned counsel for Respondent 2 has submitted that there is no merit in the contention advanced on behalf of the appellants that the FIR discloses only a civil case or that there is no allegation or averment making out a criminal offence. For that purpose he relied upon the judgment of the High Court rendered in the facts of this very case in Vijayander Kumar V. State of Rajasthan, already noted earlier.

11. XXXXXXXXX.

12. The learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka V. Rugmini Ram Raghav Spinners (P) Ltd.”

In view of the principle enunciated in the Full Bench decision of the Hon’ble Apex Court, the decisions relied upon by learned senior counsel for the petitioners which are Division Bench decisions of the Hon’ble Apex Court are not applicable to the cases on hand. So also, the facts and circumstances in the decisions relied upon by learned senior counsel for the petitioners in the said reported decisions and the facts and circumstances in the cases on hand are not exactly one and the same. Therefore, the said decisions will not come to the aid and assistance of the petitioners to contend at this stage that the transaction/dispute in between the parties is civil in nature and the complainant cannot maintain the complaint as against the petitioners.

28. It is also the contention of the respondent No.2 complainant that all the documents pertaining to the transactions are also not before the Court and some of the material documents have been suppressed by the petitioners and are not produced before the Court. In this connection, let me refer to paragraph No.9 of the Crl.P.No.100418/2017 wherein it is stated that “it is further alleged that vide the letters dated 2.1.2016 the petitioners have made admissions regarding the agreements and the amount paid by TSPCC in respect of the agreement”. Perusing the list of documents produced by the petitioners before this Court it is seen that the said letter dated 2.1.2016 as alleged by the complainant is not produced by the petitioners. The contention of the complainant that this letter dated 2.1.2016 is withheld by the petitioners is to be appreciated and will have to be considered at a later stage. It is not the contention of the petitioners in reply that there is no such letter correspondence by the petitioners to the complainant. Under such circumstances, this aspect also assumes importance in appreciating the case of the parties.

29. In paragraph No.4 of the complaint, the complainant- M/s. Nirani Sugar Ltd., has contended that, it has supplied the power from 16.3.2015 to 23.3.2015 to an extent of 36,48,000 units worth of Rs.2,35,66,080/- out of the power supplied by the complainant as stated above, the TSPCC has paid an amount towards the power supplied by the complainant on 18.5.2015, but the GEPL by its authorized director Sri.Mikhail Dhaul and Managing Director Major General Sri.N.S.Pathania (Rtd.) have dishonestly covered the said amount to its use in violation of agreement prescribing the mode in which the trust is to be discharged by retaining an amount of Rs.35,66,080/- and thereby committed an offence criminal breach of trust on 18.5.2015 and thereafter, the Director Sri.Mikhail Dhaul and Managing Director Major General N.S.Pathania (Rtd) of the GEPL have also converted the said amount to its own use dishonestly of Rs.6,77,31,846/- on and often when the TSPCC at Telangana, had paid the amount for the power supplied by the complainant till 19.10.2015 in violation of agreement (Term Sheet) 2.3.2015, 12.3.2015, 24.4.2015 and 19.5.2015.

30. Looking to the allegations in the complaint it is seen that there are specific allegations against the petitioners that they have committed criminal breach of trust and also cheated the complainant, with knowledge that retaining the said amount without paying it to the complainant as per the time schedule will cause loss to the complainant.

31. Considering the entire materials placed on record, at this stage, it cannot be said that the complaint filed by the complainant-respondent No.2 and the FIR registered by the respondent No.1 is an abuse of the process of the Court, so also, it cannot be said that there is no prima facie case made out by the respondent No.2-complainant at this stage against the petitioners. In view of my above discussions, it is not a case to invoke Section 482 of Cr.P.C. for quashing the proceedings at this stage.

Hence, both the petitions are hereby dismissed.
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