The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2039 of 2017 along with CRLMC Nos.343, 3059 & 3285 of 2018, 2805, 2806, 3184 & 3185 of 2019 and 13 of 2021. (These are the applications under Section 482 of the Code of Criminal Procedure, 1973) In CRLMC No.2039 of 2017 Jindal India Thermal Power Limited and Ors. …. Petitioners -versus- State of Odisha and Ors. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. Ashok Mohanty, Sr. Adv. Mr. Prafulla Ku. Rath, Adv. Mr. Satyajit Mohanty, Adv. -versus- For Opp. Parties : Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.P.3) In CRLMC No.343 of 2018 M/s. Sinhotia Metals and Minerals Pvt. Ltd and Ors. -versus- …. Petitioners State of Odisha & Ors. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. Rajjeet Roy, Adv. -versus- For Opp. Parties : Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Sahoo, Adv. (for O.P.3) CRLMC No.2039 of 2017 and batch of cases 1 of 41 In CRLMC No.3059 of 2018 Jindal India Thermal Power Limited and Ors. …. Petitioners -versus- State of Odisha and Anr. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. Biswa Mohan Patnaik, Sr. Adv. Mr. Satyajit Mohanty, Adv. -versus- For Opp. Parties : Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.P.2) In CRLMC No.3285 of 2018 Shyam Jindal …. Petitioner -versus- State of Odisha and Anr. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. Biswa Mohan Patnaik, Sr. Adv. Mr. Satyajit Mohanty, Adv. -versus- For Opp. Parties : Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.P.2) In CRLMC No.2805 of 2019 Jindal India Thermal Power Limited & Ors. …. Petitioners -versus- State of Odisha and Anr. …. Opp. Parties CRLMC No.2039 of 2017 and batch of cases Page 2 of 41 Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. Satyajit Mohanty, Adv. -versus- For Opp. Parties
Legal Reasoning
counsel further submits that a strong prima facie case is apparent on the face of the record wherein all the three present petitioners have actively connived and entered into a criminal conspiracy to fraudulently misappropriate the Complainant Company’s property, cause wrongful gain to themselves in the process and purposely fabricate and forge important documents to defeat the claims of the Complainant Company before the Learned Arbitral Tribunal. He also submitted that although the criminal conspiracy and cheating have been committed both prior to and pending the CRLMC No.2039 of 2017 and batch of cases Page 18 of 41 arbitration proceedings, the acts of forgery and fabrication have been committed in a concerted manner which only came into light during the course of the arbitration proceedings. Thus, the act of cheating has been a continuing offence hatched in deep conspiracy by the parties concerned. 8. Heard learned counsels for the parties and perused the materials on record. Before adverting to the facts of the case, it is apposite to refer first to the law applicable to the facts of the present case. It is well settled that though the inherent powers of the High Court under Section 482 of the Code are very wide in amplitude, yet they are not unlimited. However, it has been deemed neither to be feasible nor desirable to lay down an absolute rule which would govern or inhibit the exercise of inherent jurisdiction of the Court under Code of Criminal Procedure, 1973. Nevertheless, it is trite that powers under the said provision have to be exercised sparingly and with caution to secure the ends of justice and to prevent the abuse of the process of the court. Where the allegations in the first information report or the complaint taken at its face value and accepted in their entirety do not constitute the offence alleged, ex facie, the High Court would be justified in invoking its powers under Section 482 of the Code to quash the criminal proceedings. Reference may be made to the Hon’ble Supreme Court’s decisions CRLMC No.2039 of 2017 and batch of cases Page 19 of 41 in R.P. Kapur v. State of Punjab1 and Rupan Deol Bajaj v. Kanwar Pal Singh Gill2. 9. In the case of State of Haryana v. Ch. Bhajan Lal3, the Hon'ble Apex Court has held that an FIR can be quashed at the initial stage where the allegations made, even if taken at their face value and accepted in its entirety, do not prima facie constitute any offence or make out a case against the accused. In a similar vein in the case of Rishipal Singh v. State of Uttar Pradesh4, the Hon’ble Supreme Court held that the High Court in exercise of its inherent power under Section 482 Cr.P.C., should not allow a vexatious complaint to continue, which would be a pure abuse of the process of law and the same ought to be interdicted at the threshold. 10. The principle relating to the nature and scope of exercise of power under Section 482 of the Cr.P.C. has now, by and large, been crystallized by the Hon’ble Supreme Court in the case of Shakson Belthissor v. State of Kerala5, relying upon its earlier judgment in the case of Indian Oil Corpn. v. NEPC India Ltd.6 and a plethora of case law on the subject matter has authoritatively laid down as under;
Arguments
: Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.P.2) In CRLMC No.2806 of 2019 Shyam Sunder Jindal …. Petitioner -versus- State of Odisha and Anr. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioner : Mr. Satyajit Mohanty, Adv. -versus- For Opp. Parties : Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.P.2) In CRLMC No.3184 of 2019 Jindal India Thermal Power Limited & Ors. …. Petitioners -versus- State of Odisha and Anr. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. Satyajit Mohanty, Adv. For Opp. Parties : Mr. Karunakar Gaya, ASC -versus- (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.P.2) CRLMC No.2039 of 2017 and batch of cases Page 3 of 41 In CRLMC No.3185 of 2019 Shyam Sunder Jindal …. Petitioner -versus- State of Odisha and Anr. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioner : Mr. Shyamalendu Pattnaik, Adv. -versus- For Opp. Parties : Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.P.2) In CRLMC No.13 of 2021 M/S. Sinhotia Metals and Minerals Pvt. Ltd. & Anr. …. Petitioners -versus- State of Odisha and Anr. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. Rajjeet Roy, Adv. -versus- For Opp. Parties : Mr. Karunakar Gaya, ASC (for O.P.1) Mr. A.K. Panigrahi, Adv. (for O.Ps.2 & 3) CRLMC No.2039 of 2017 and batch of cases Page 4 of 41 CORAM: MR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-22.03.2022 DATE OF JUDGMENT:-13.05.2022 S.K. Panigrahi, J. 1. These petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) have been filed with a prayer to quash the proceedings emanating from ICC Case No.33 of 2017, ICC Case No.74 of 2017, ICC Case No.57 of 2018 pending before the learned Sub-divisional Judicial Magistrate, Talcher and ICC Case No.44 of 2019 pending before the learned Sub-divisional Judicial Magistrate, Angul. As the petitions involve the similar facts, they are being decided by this common judgment and order. 2. Shorn of unnecessary details, the facts of the present matter are as follows: i. The Complainant Company, one M/s Quartz Infra and Engineering Private Limited is engaged in the business of civil engineering and providing construction services. The Complainant Company had undertaken a back to back sub-contract work from one M/s GSR Ventures Private Limited to execute the construction of a boundary wall as well as area grading and leveling work in March 2010 at the newly constructed 2x600 MW Thermal Power CRLMC No.2039 of 2017 and batch of cases Page 5 of 41 Plant belonging to Jindal India Thermal Power Limited (hereinafter referred to as “M/S JITPL”, present Petitioner No.1 in CRLMC No.3184 of 2019, CRLMC No.2085 of 2019, CRLMC No.3059 of 2018 and CRLMC No.2039 of 2017) at Derang, Odisha (hereinafter referred to as the “Derang Power Plant”). ii. The Complainant Company then entered into six Civil engineering work contracts with M/S JITPL between April 2011 to February 2012 for construction of; peripheral roads and drains, internal roads and drains, security sheds, boundary wall, raw water reservoir extension and execution of the balance work left in the Ash Dyke by M/s GSR Ventures Private Limited, all for the said Derang Power Plant. To that end the Complainant Company submitted three bank guarantees for a total sum of Rs. 2.72 Crores towards security/earnest money for the same. iii. At the relevant point of time, in December 2012, the work pertaining to the construction of the boundary wall was completed, the work pertaining to the construction of security sheds was closed and the work pertaining to the remaining four contracts i.e. construction of; peripheral roads and drains, internal roads and drains, raw water reservoir extension and execution of the balance CRLMC No.2039 of 2017 and batch of cases Page 6 of 41 work left in the Ash Dyke by M/s GSR Ventures Private Limited was underway. iv. It is the contention of the Complainant Company, that prior to terminating the contracts with the Complainant Company, M/S JITPL maliciously entered into an understanding with one M/s Sinhotia Metals and Minerals Private Limited (hereinafter referred to as “M/s SMMPL” and present Petitioner No. 1 in CRLMC No.3285 of 2018 and CRLMC No.13 of 2021) in December 2012 itself, to usurp the work contracts from the Complainant Company at the Derang Power Plant at a rate much higher compared to the one awarded to the Complainant Company. v. Subsequently, the Complainant Company’s contracts with M/S JITPL were unilaterally terminated on 31.1.2013 and the bank guarantees furnished by the Complainant Company fora total sum of Rs.2.72 Crores were encashed on 29.1.2013 without any prior notice or intimation to the Complainant. The Complainant Company was then asked to draw up its final bills after measurement of its work done till 31.1.2013 and vacate the premises of the Derang Power Plant forthwith. vi. It is the contention of the Complainant Company that despite its strong protest in relation to the manner of the illegal termination of their contracts CRLMC No.2039 of 2017 and batch of cases Page 7 of 41 as well as the fact that M/s SMMPL had already entered into the work site, the Complainant Company who was by this pushed into a corner, was forced to accept the promise of the officers of M/S JITPL who assured them that the entire work site would get measured and the final bill would be processed within 9 days on the meeting dated 6.2.2013. vii. Pursuant to the same, a joint verification of the work done till 31.01.2013 as well as a measurement of the materials of the Complainant Company lying in store at the Derang Power Plant was conducted by the officers of M/S JITPL, officers of one M/s Currie & Brown and officers of the Complainant Company. After due measurement, the details of which were recorded in ground level books and the officers of the aforesaid attested to the same by putting their signatures. A final bill of Rs. 1.53 Crores was submitted which was also duly endorsed by the concerned officers of M/S JITPL. The Complainant Company subsequently vacated the premises of the Derang Power Plant. M/S JITPL thereafter admittedly made a payment of Rs. 92.25 lacs but did not make any payment for the remainder amount of about Rs. 60.8 lacs as claimed by the Complainant. CRLMC No.2039 of 2017 and batch of cases Page 8 of 41 viii. It is the Complainant’s case that despite the repeated requests for releasing the payment of the remainder amount, when M/S JITPL paid no heed to the Complainant Company, the Complainant Company was constrained to invoke arbitration clause as was contracted between them. ix. During the course of the arbitration proceedings the Complainant Company assailed not only the non-payment of the remainder amount as aforesaid of the final bill but also disputed the termination of the contracts as well as encashment of the bank guarantees. In the reply filed by M/S JITPL before the learned Arbitral Tribunal, the Complainant Company has alleged that it was shocked to learn that M/S JITPL has forged/fabricated, and in the process altered, the final bill and the ancillary 29 level books containing measurements of the works to show that the final bill amount was Rs.94.88 lacs. It was also contended that M/S JITPL has submitted documents wherein they themselves have contradicted the alternate amount arrived by them and stated that the final bill was a further reduced amount of Rs. 92.25 lacs which has been fully paid to the Complainant Company. x. It was further submitted that these alleged manipulated, forged and fabricated bills as well as ancillary documents were relied upon by M/S JITPL CRLMC No.2039 of 2017 and batch of cases Page 9 of 41 throughout the course of arbitration much to the chagrin of the Complainant Company in an effort to defraud the learned Tribunal. xi. Finally, the Learned Tribunal, for reasons other than for the alleged forgery, manipulation and fabrication, in its majority award dated 21.2.2017, rejected all contentions raised by M/S JITPL and, awarded a total sum of Rs.9.71 Crores in favour of the Complainant Company including the entire sum of Rs.1.53 Crores of the final bill. xii. It is around this time that the Complainant Company filed the four criminal complaint petitions against various persons including M/S JITPL, M/s SMMPL and Mr. Shyam Sunder Jindal (present Petitioner No.1 in CRLMC No. 3185 of 2019, CRLMC No. 2806 of 2019 and CRLMC No.3285 of 2018) who are the parties before this Court seeking quashing of the four criminal complaint petitions through the present criminal miscellaneous petitions. 3. Before proceeding to record the submissions made by the parties, this Court finds it apposite to firstly succinctly encapsulate the allegations contained in each of the four impugned criminal complaint petitions. The pith and substance of the criminal complaint petitions is as follows: CRLMC No.2039 of 2017 and batch of cases Page 10 of 41 i. ICC Case No.33 of 2017, pending before the learned Sub-divisional Judicial Magistrate, Talcher. The Complainant Company has alleged commission of offences under Sections 447/ 403/ 379/ 406/ 408/ 409/ 420/ 426/ 341/ 109/ 120-B IPC r/w Section 34 IPC contending that the Opposite Parties therein (including present Petitioners M/S JITPL in CRLMC No 2039 of 2017 and M/s SMMPL in CRLMC No.343 of 2018) have misappropriated the Complainant Company’s property that was lying in the work site of the Derang Power Plant for their own individual benefit while colluding, conniving and acting in a concerted manner in furtherance of criminal conspiracy to illegally oust the Complainant Company from the work site for their own gratification. The Opposite Parties have surreptitiously entered the work site of the Derang Power Plant and taken over the work of the Complainant Company in a malafide manner behind the Complainant Company’s back. The Opposite Parties have also forced the Complainant Company to sell its materials on the work site to M/s SMMPL on a much lower rate than acceptable out of which also the full payment was never realized despite multiple reminders and requests. As such, the Opposite Parties have dishonestly CRLMC No.2039 of 2017 and batch of cases Page 11 of 41 misappropriated the Complainant Company’s movable property and have cheated the Complainant Company while also committing criminal breach of trust. Thus, the accused persons have colluded with each other to cheat the Complainant so as to unlawfully cause loss of property and have therefore breached the agreement between them and are thereby guilty of criminal breach of trust. ii. ICC Case No.74 of 2017, pending before the learned Sub-divisional Judicial Magistrate, Talcher. The Complainant Company has alleged commission of offences under Sections 191/ 192/ 193/ 196/ 463/ 465/ 468/ 471 /120-B/ 420/ 427/ 506 IPC r/w Section 34 IPC contending that the Opposite Parties therein (including present Petitioners M/S JITPL in CRLMC No.2805 of 2019 and Shyam Sunder Jindal in CRLMC No.2806 of 2019) fabricated false evidence to defeat the claims of the Complainant Company before the Learned Arbitration Tribunal, placed reliance on the said evidence and misleading the tribunal despite knowing the same to be false and forged documents including level books to fraudulently create an altered final bill being thus guilty of cheating, forgery and fabrication. It is the Complainant CRLMC No.2039 of 2017 and batch of cases Page 12 of 41 Company’s submission that the Document. No 2 relating to specifications of Ash Dyke contract ran counter to the earlier filed Document No. 1 which was said to have been inadvertently filed by the Opposite Party, despite the fact that Document No. 1 was admittedly treated as undisputed document at the very threshold of the arbitration proceedings. This fabricated and forged Document No.2 was filed at a later point in time and was inconsistent while containing a completely different and more stringent set of requirements for performance by the Complainant Company and was a stark departure from the earlier specifications described and contained in Document No. 1. Upon scrutiny of the specifications contained in Document No. 3 as well, filed before the Learned Arbitral Tribunal, it is also alleged that the same has been forged and fabricated intentionally to frustrate and cause wrongful loss to the Complainant Company and hoodwink the Tribunal to secure an erroneous opinion against the Complainant Company by misleading the Learned Tribunal. Thus the Complainant Company makes out a serious case against the Opposite Parties of a well-planned and concerted effort to forge and fabricate documents to cheat the Learned Tribunal so as to secure a favourable award. CRLMC No.2039 of 2017 and batch of cases Page 13 of 41 iii. ICC Case No.57 of 2018, pending before the learned Sub-divisional Judicial Magistrate, Talcher. The Complainant Company has alleged the commission of offences u/s 192/ 193/ 196/ 420/ 463/ 465/ 468/ 469 /471 /120-B/ 403 IPC r/w S. 34 of IPC and under Sections 66(c) and 66(d) of IT Act 2000 contending that the Opposite Parties (including present Petitioners M/S JITPL in CRLMC No. 3059 of 2018, M/s SMMPL in CRLMC No. 13 of 2021 and Shyam Sunder Jindal in CRLMC No. 3285 of 2018) have in active connivance arbitrarily terminated all the contracts with the Complainant Company in January, 2013. The Opposite Parties have further dishonestly altered the final ground level measurements as well as the end points of work to reduce the quantity of work executed and thereby cheating the Complainant Company by depriving it of the money rightfully due to it. The illegal alteration of measurements is to forge/fabricate a new final bill has resulted in misappropriation of the hard earned money of the Complainant Company and therefore the Opposite Parties have caused grave wrongful loss to the Complainant Company while causing wrongful gain to M/s SMMPL who would have then been in the position to charge M/S JITPL for an inflated CRLMC No.2039 of 2017 and batch of cases Page 14 of 41 quantity of work than that done by them. On these facts, the Opposite Parties are alleged to be conjointly liable for commission of alleged offences of criminal conspiracy, misappropriation of amount, cheating, fabricating / forgery of critical documents besides adducing false evidence before the Learned Arbitral Tribunal. iv. ICC Case No.44 of 2019, pending before the learned Sub-divisional Judicial Magistrate, Angul. Here, the Complainant Company has alleged the commission of offences u/s 422 IPC r/w S. 120-B and 34 IPC on the contention that the Opposite Parties (including present Petitioners M/S JITPL in CRLMC No. 3184 of 2019 and Shyam Sunder Jindal CRLMC No. 3185 of 2019) have willfully dragged the arbitration proceedings for four years to inflict pain and mental agony on the Complainant Company and have thereafter filed an alleged false and frivolous application under Section 34 of the Arbitration and Conciliation Act challenging the award dated 21.2.2017 of the Learned Arbitration Tribunal as a counter to the Execution Case No.158 of 2017 filed by the Complainant Company for recovery of the awarded amount. After dismissal of the application under Section 34 of the Arbitration Act, the Opposite Parties have subsequently filed an CRLMC No.2039 of 2017 and batch of cases Page 15 of 41 application under Section 37 of the Arbitration Act before this Hon’ble Court which is pending adjudication. As such, the Complainant Company alleges that the Opposite Parties have stalled the Execution Case No.158 of 2017 filed by the Complainant Company and have prevented the attachment of immovable and movable properties of the Derang Power Plant towards fulfillment of the debt i.e. the award dated 21.2.2017 of the Learned Arbitration Tribunal. 4. Learned counsel for the Petitioner M/S JITPL (in CRLMC No.2805 of 2019, CRLMC No.3184 of 2019, CRLMC No.3059 of 2018 and CRLMC No.2039 of 2017) vehemently submits that the allegations on the whole germinate from a dispute which is purely civil in nature and the criminal proceedings initiated by the Complainant Company amount to an abuse of the process of the Court. The said proceedings have all been allegedly initiated with mala fide and malice to wreak vengeance on the M/S JITPL Company and its officers. It is also submitted that the issue of forgery has been specifically dealt with by the learned Arbitral Tribunal in its award and therefore the present petitions may all be allowed to secure the ends of justice as the complaints amount to an abuse of the process of law primarily due to the reason that the disputes between the parties are primarily civil in CRLMC No.2039 of 2017 and batch of cases Page 16 of 41 nature and the complaints are works of malice as they are vexatious in nature with the sole intent to harass the accused persons. 5. Thereafter, the Learned Counsel for the Petitioner M/s SMMPL (in CRLMC No.13 of 2021 and CRLMC No.343 of 2018) has ardently argued that the allegations contained in the impugned complaint petitions are entirely against the other Opposite Parties and have no material against the abovementioned Petitioner. As such, it is submitted that the dispute is entirely civil in nature and the abovementioned Petitioner has no role to play in the dispute which primarily involves the Complainant Company and M/S JITPL and its personnel. The allegations contained even if taken at their face value and accepted in its entirety do not satisfy the ingredients of the offences alleged to have been committed by the abovementioned Petitioners. 6. Learned counsel for the Petitioner Mr. Shyam Sunder Jindal (in CRLMC No.2806 of 2019, CRLMC No.3185 of 2019 and CRLMC No.3285 of 2018) has submitted that the abovementioned Petitioner is neither the Chairman, nor a Director, nor a Shareholder, nor an employee of M/S JITPL and is nowhere connected with the present matter. The abovementioned Petitioner is a stranger to the dispute between the Complainant Company and the other CRLMC No.2039 of 2017 and batch of cases Page 17 of 41 Opposite Parties and as such allowing the proceedings to continue against him would tantamount to an abuse of the process of law. 7. Per contra, learned counsel for the Complainant Company opposes the petitions on the grounds that it is the settled position of law that facts which may give rise to a civil claims can also tantamount to criminal offences and separate proceedings may be initiated under the law for prosecution of the same independent of each other. As such, an arbitration is a remedy limited to affording relief to a party affected by the breach of a contract but the arbitrator does not have the power to conduct a criminal trial of any offences that may have been committed by the party in connection with the self-same contract. The learned