The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 548 of 2011 DOABA INDUSTRIAL & TRADING COMPANY PVT. LTD. (DITCO), Central Office …. Petitioner -versus- None Republic of India and others …. Opp. Parties Mr. S.K. Padhi, Advocate CORAM: THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No. ORDER 11.09.2025 11. 1. None appears on call. 2. The legality, propriety and correctness of the order dated 07.07.2011 passed by the learned Special CJM (CBI), Bhubaneswar in SPE No.32 of 1994 has been called in question in this revision. 3.
Facts
The background facts of the case are that the Petitioner-M/s. DOABA Industrial & Trading Company Pvt. Ltd. having its office at Industrial Area, Yamunangar in the State of Haryana, is engaged in the business of dealing with the business of clearing and forwarding agent and other allied products. It is further the case of the Petitioner that M/s. National Aluminum Company Ltd. (NALCO), a public sector undertaking manufacturing aluminum products at Angul, entered into a contract with the Petitioner to appoint it as the Clearing & Forwarding Agent (hereinafter referred to as the C&F) for exporting consignments of ingots at Paradeep Port. The said agreement was executed between the Petitioner and NALCO by way of a letter bearing reference dated 20.06.1991 issued by the Chief Material Manager, NALCO. The contract was to remain valid for a period of two years w.e.f. 20.06.1991 to 30.06.1993. It is also the case of the Petitioner that in the said special conditions, Clause 3.16 stipulated that the Contractor, i.e., the Petitioner, shall be responsible for maintaining proper accounts of the materials dispatched to the Port, shifting, stuffing into the containers, balance lying in the Port’s custody, and providing NALCO with a weekly statement of receipts, dispatches, as well as the balance of the materials. Vide Clause 10 of the special conditions of the contract, it was provided that the Contractor shall take all necessary precautions to ensure the safety of the materials after collection from the railway siding until stuffing into the containers, and any loss or Page 2 of 9 damage due to negligence shall be recoverable from them. Some more conditions are also found to have been enumerated in Clauses 11 and 14 of the said contract. According to the Petitioner, one M/s. Marine Consultants & Surveyors Ltd. (MACRONS) was also appointed by NALCO to survey the export operation and supervise the activities of unloading ingots from trucks, recording the condition of packages, as well as noting shortages of materials, if any. The Petitioner’s representative used to sign the challan as a token of receipt of the materials on the certificate of the surveyor appointed by NALCO for the said purpose. The Port Trust had engaged the Central Industrial Security Force (hereinafter referred to as CISF), which is a Central Government Security Organization, for protection of the materials, equipment, etc., lying at the port area. However, in spite of the keen watch kept by CISF over the materials lying in the custody of the Port area, theft and pilferage took place, and the Petitioner lodged an FIR with the Officer-in-Charge, Paradeep Port, for such theft. Since 1991, the Petitioner has brought to the notice of NALCO that the material, i.e., aluminum ingots received by the Petitioner, was in loose bundles and also warned NALCO that there was a very high risk of pilferage and theft of cargo lying in the open stockyard designated for Page 3 of 9 stacking the said cargo by Paradeep Port. However, to avoid pilferage/theft, the Petitioner had deployed security personnel round the clock as a preventive measure for strict vigil on NALCO’s goods lying in the custody of the Port. Since the aforesaid services did not come under the purview of the contract dated 20.06.1991, the Petitioner requested NALCO by letter dated 22.08.1991 to reimburse the expenses incurred on this account separately. 4. The said M/s. MARCONS (appointed by NALCO), by several letters, has drawn the attention of NALCO to the possibility of pilferage and theft of cargo by the lorry drivers and at the stockyard. However, NALCO, by way of letter dated 08.09.1993, claimed damages from the Petitioner for shortage of materials at Paradeep. As there was a dispute between the Petitioner and NALCO, the Petitioner invoked the arbitration clause, and NALCO, by letter dated 10.01.1995, appointed an arbitrator to adjudicate upon the claim and counter-claim of NALCO. NALCO has never complained nor lodged any complaint or FIR for misappropriation of aluminum ingots with the Police Authority. On the contrary, NALCO claimed a sum of Rs.33,71,000/- from the Petitioner-company with interest on account of shortage of materials before the Arbitrator. On 18.08.1994, a suo motu FIR was lodged by Page 4 of 9 the Superintendent of Police, CBI, alleging criminal conspiracy and misappropriation of 52.809 M.Ts. of aluminum ingots totaling Rs.32.7 lakhs during the period 1992–93. On 31.03.1995, the DSP, CBI, submitted the charge sheet wherein DITCO and P.R. Maniktala, Director-cum-General Manager, DITCO, were shown as Accused Nos. 1 and 2 respectively for commission of offence under Section 406 IPC. The said accused, P.R. Maniktala, after appearing before the learned Court, subsequent to the rejection of his discharge petition by the Court concerned, preferred revision on 29.10.1996 for quashing of the prosecution before this Court in Criminal Revision No.543 of 1996. This Court was also moved under Section 482 read with Section 397 Cr.P.C. in CRLMP Case No.503 of 1997 praying to set aside the order dated 31.07.1995 passed by the Additional C.J.M., Bhubaneswar. Both the matters were taken up together and this Court passed the order allowing both the applications in part with certain observations. The supplementary charge sheet was filed by the Inspector of Police, CBI, against J.K. Mediratta for commission of offence under Section 406 IPC and to treat the same as continuation of the earlier charge sheet and to Page 5 of 9
Legal Reasoning
Bhubaneswar observed that there is prima facie material to presume that the accused-Petitioner has misappropriated a huge quantity of aluminium ingots. Subsequently, the Petitioner moved before this Court in CRLREV No.1 of 2010. However, during pendency of the aforesaid revision, Page 6 of 9 the learned Court below proceeded with the framing of charge against the Petitioner under Section 406 IPC vide order dated 07.07.2011. Challenging the framing of charge under Section 406 IPC, the Petitioner moved herein. 7. Learned counsel for the Petitioner submits that he has no instruction in the matter. 8. Even if the learned counsel submits that he has no instruction to proceed in the matter, the Revision cannot be
Arguments
proceed against Sri J.K. Mediratta and the company M/s. DITCO in accordance with law. 5. Pursuant thereto, Mr. P.R. Maniktala, the Director- cum-General Manager, DITCO, moved an application before the S.D.J.M., Bhubaneswar under Section 305 Cr.P.C. along with the Resolution of the Board of Directors, addressing the Court that the allegations appearing in the complaint establish a dispute which is civil in nature. He further filed an application before the Special Judge, CJM (CBI), Bhubaneswar for discharge of Accused No.1-company. Pursuant to the order passed by the learned Special Judge, CJM (CBI), Bhubaneswar in S.P.E. No.32 of 1994, the Petitioner filed CRLMC No.1209 of 2010 before this Court, and this Court, having heard the parties, vide order dated 04.11.2010, allowed the case of the Petitioner and remanded the matter for reconsideration. 6. After hearing, the learned Special Judge, CBI,
Decision
dismissed, and needs to be disposed of on merit. 9. As seen from the application in every stage of the matter the Petitioner has challenged the action of the prosecuting Authority as well as the orders passed by the trial court and could manage to stall the proceeding since 1994. 10. Finally, in the present application is pending wherein the Petitioner challenges the order framing the charge dated 07.07.2011. The sole ground on which the Petitioner seeks to assail the impugned order is that the dispute is Civil in nature and Arbitration clause stipulated in the agreement has been invoked. However, no such documents invoking arbitration clause appointing arbitrator has been filed. Further, nothing has been set forth as to how the materials available on record does not Page 7 of 9 constitute an offence upon which the Petitioner has been charged. On the contrary, the learned court while framing the charge has expressed its satisfaction with regard to existence of sufficient material in order to proceed with framing of charge, though did not discuss in thread bare as to which document reveals what facts constituting the offence. 11. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding Page 8 of 9 against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed. 12. Keeping in view the principle as above, when an endeavour is taken to peruse the materials on record viz; CS, FIR and the statements of the witnesses it amply discloses prima facie case against the Petitioner constituting the offence. In fact the offence charged being only under section 406 IPC there is no need to spell out the facts in every particular document constituting the offence. Hence, the learned trial court has committed no illegality in framing the charge. 13 In the result, the CRLREV is dismissed being devoid of merit. 14. The learned trial court is directed to proceed with the case with promptitude and no further adjournment shall be allowed to the petitioner unless the court finds it urgent and necessary. Judge (Chittaranjan Dash) Signature Not Verified Digitally Signed Sisir Signed by: SISIR KUMAR SETHI Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT Date: 15-Sep-2025 16:38:02 Page 9 of 9